Nandy v. Albany Medical Center Hosp.

• Decision Date: 22 November 1989
• Citation: 155 A.D.2d 833,548 N.Y.S.2d 98
• Parties: Parimal NANDY, as Parent and Natural Guardian of Pramir Nandy, an Infant, Respondent, v. ALBANY MEDICAL CENTER HOSPITAL, Appellant-Respondent, and Eric D. Foster, Respondent-Appellant, and Albany Medical College et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 98

548 N.Y.S.2d 98

155 A.D.2d 833

Parimal NANDY, as Parent and Natural Guardian of Pramir Nandy, an Infant, Respondent, v. ALBANY MEDICAL CENTER HOSPITAL, Appellant-Respondent and Eric D. Foster, Respondent-Appellant and Albany Medical College et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 22, 1989.

Maynard, O'Connor & Smith, Albany, for appellant-respondent.

E. Stewart Jones, (David J. Taffany, of counsel), Troy, for respondent.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Dianne Bresee Mayberger, of counsel), Albany, for respondent-appellant.

Before KANE, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

YESAWICH, Justice.

Appeals (1) from an order of the Supreme Court (Kahn, J.), entered November 29, 1988 in Albany County, which denied defendant Albany Medical Center Hospital's motion for summary judgment dismissing the complaint and all cross claims against it, and (2) from an order of said court, entered March 1, 1989 in Albany County, which denied defendant Eric D. Foster's motion for summary judgment dismissing the complaint and all cross claims against him.

In this medical malpractice action, plaintiff charges that neurological damage suffered by the infant was the result of negligent surgical and postoperative care furnished by hospital personnel and defendant Eric D. Foster, the attending surgeon. Supreme Court denied separate motions for summary judgment by Foster and defendant Albany Medical Center Hospital (hereinafter collectively referred to as defendants) because conflicting medical affidavits created questions of fact regarding whether defendants deviated from the accepted standard of care in their treatment of the infant. Defendants appeal; we affirm.

In support of its motion, the hospital submitted both an affidavit by Dr. Norman Dennis, a specialist in pediatrics and adolescent medicine, and Foster's deposition. That deposition and an affidavit by Dr. Frederick Parker, a specialist in thoracic and cardiac surgery, underlies Foster's motion. Dennis, relying on the infant's hospital chart, and Parker, having reviewed the operative notes, hospital record and Foster's records, opined respectively that neither the hospital's nor Foster's care deviated from good, accepted surgical and medical practices. The Dennis and Parker affidavits, together with the transcript of Foster's testimony regarding the specific care which the child was given, make out a prima facie showing by defendants of entitlement to summary judgment.

In assessing the adequacy of plaintiff's responding papers, it is worth noting at the outset that "[i]n all but the most extraordinary instances, whether a defendant has conformed to the standard of conduct required by law is a question of fact" necessitating a trial (Kiernan v. Hendrick, 116 A.D.2d 779, 781, 497 N.Y.S.2d 171, appeal dismissed 68 N.Y.2d 661, 505 N.Y.S.2d 76, 496 N.E.2d 235), that being the nonmoving party, plaintiff need only demonstrate that a material triable fact issue exists; and, further, that plaintiff is entitled to the benefit of every favorable inference which can be drawn from the pleadings and medical affidavit tendered on his behalf (see, Blake-Veeder Realty v. Crayford, 110 A.D.2d...