Shajan v. S. Nassau Cmtys. Hosp.

• Decision Date: 10 October 2012
• Citation: 99 A.D.3d 786,2012 N.Y. Slip Op. 06795,952 N.Y.S.2d 448
• Parties: Baby SHAJAN, et al., respondents, v. SOUTH NASSAU COMMUNITIES HOSPITAL, et al., defendants, Regina E. Hammock, etc., appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 786

952 N.Y.S.2d 448

2012 N.Y. Slip Op. 06795

Baby SHAJAN, et al., respondents,

v. SOUTH NASSAU COMMUNITIES HOSPITAL, et al., defendants,Regina E. Hammock, etc., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 10, 2012.

Bréa Yankowitz P.C., Floral Park, N.Y. (Patrick J. Bréa of counsel), for appellant.

A. Paul Bogaty, New York, N.Y. (Joan P. Brody of counsel), for respondents.

In an action to recover damages for medical malpractice, etc., the defendant Regina E. Hammock appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered March 30, 2011, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the motion of the defendant Regina E. Hammock for summary judgment dismissing the complaint insofar as asserted against her. The plaintiffs asserted that Hammock's malpractice arose from her supervision of the medical care provided to the injured plaintiff, Baby Shajan, by the defendant Brian J. Janicek, a physician's assistant. A physician-patient relationship may be created, and a physician may be held liable for medical malpractice, where a physician is responsible for supervising a health-care professional such as a physician's assistant, and the physician inadequately supervises the health-care professional, thus causing or contributing to the inadequacy or impropriety of the care rendered by that health-care professional ( seeEducation Law § 6542[1], [3]; 10 NYCRR 94.2[a], [f]; Baressi v. State of N.Y., 232 A.D.2d 962, 963–964, 649 N.Y.S.2d 207;see generally Cullinan v. Pignataro, 266 A.D.2d 807, 698 N.Y.S.2d 381). Contrary to Hammock's contentions, she failed to make a prima facie showing that no physician-patient relationship existed between herself and the injured plaintiff at the time of the alleged malpractice ( see Sheppard–Mobley v. King, 8 A.D.3d 358, 777 N.Y.S.2d 767;Wienk–Evans v. North Shore Univ. Hosp. at Glen Cove, 269 A.D.2d 443, 702 N.Y.S.2d 917),since she failed to establish that she was not responsible for supervising Janicek. Moreover, Hammock did not submit an expert's affirmation in support of her motion. Accordingly, she also failed to establish, prima facie, that she did not deviate or depart from accepted medical practice in her supervision of the care rendered to the injured plaintiff by Janicek, or that any alleged...