Hassan v. Woodhull Hosp. and Med. Ctr.
| Decision Date | 30 April 2001 |
| Citation | 724 N.Y.S.2d 184 |
| Parties | (A.D. 2 Dept. 2001) Maher Ahmed Hassan, et al., appellants, v Woodhull Hospital and Medical Center, defendant, James A. Terry, Jr., M.D., P.C., et al., respondents. 2000-05164 : SECOND JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
Groman & Segall, P.C., New York, N.Y. (Michael Yoeli of counsel), for appellants.
Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondents.
GABRIEL M. KRAUSMAN, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated March 14, 2000, as granted the motion of the defendants James A. Terry, Jr., M.D., P.C., and James A. Terry, Jr., for summary judgment dismissing the complaint insofar as asserted against them, and denied their cross motion for leave to serve an amended complaint.
ORDERED that the order is modified by deleting the provision thereof granting the motion of the defendants James A. Terry, Jr., M.D., P.C., and James A. Terry, Jr., and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.
The defendant Dr. James A. Terry, Jr., supervised and allegedly actively participated in a surgical procedure upon the injured plaintiff (hereinafter the plaintiff) on September 16, 1996, while the plaintiff was a patient at Woodhull Hospital and Mental Health Center (hereinafter Woodhull). Woodhull is owned and operated by the New York City Health and Hospitals Corporation (hereinafter the HHC). Although Dr. Terry was employed by a private hospital at the time of the plaintiffs surgery, he claims that he was appointed to Woodhull as a consulting surgeon, and that he participated in its Community Physician Program by supervising and assisting residents during operations. Following the operation, the injured plaintiff and his wife commenced this medical malpractice action, naming Dr. Terry as a defendant both in his individual capacity and as James A. Terry, Jr., M.D., P.C. (hereinafter the defendants). The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, contending that Dr. Terry was a statutory employee of the HHC, and that the plaintiffs' failure to serve a timely notice of claim upon the HHC mandated dismissal of the complaint against him and his professional corporation. The Supreme Court granted the motion, concluding that Dr. Terry was an employee of the HHC pursuant to General Municipal Law § 50-d(1), and that the plaintiffs' failure to serve the HHC with a notice of claim based upon Dr. Terry's alleged malpractice required dismissal.
On appeal, the plaintiffs contend that the Supreme Court erred in concluding that they were required to serve a notice of claim upon the HHC because Dr. Terry is a statutory employee within the meaning of General Municipal Law § 50-d. We agree. General Municipal Law § 50-d provides that every municipal corporation shall assume the liability for malpractice of any physician who renders medical services without receiving compensation at public institutions maintained by that municipal corporation. "Where section 50-d is applicable, ultimate financial responsibility rests not...
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