Tungsupong by Tungsupong v. Bronx-Lebanon Hosp. Center, BRONX-LEBANON

• Citation: 623 N.Y.S.2d 866,213 A.D.2d 236
• Decision Date: 14 March 1995
• Docket Number: BRONX-LEBANON
• Parties: Suta TUNGSUPONG, an Infant, by His Mother and Natural Guardian, Sompian Tungsupong, et al., Plaintiffs, v. TheHOSPITAL CENTER, et al., Defendants-Respondents, Harry P. Diamandis, M.D., et al., Defendants, Bronx Anesthesia Group, P.C., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 866

623 N.Y.S.2d 866

213 A.D.2d 236

Suta TUNGSUPONG, an Infant, by His Mother and Natural Guardian, Sompian Tungsupong, et al., Plaintiffs, v. The BRONX-LEBANON HOSPITAL CENTER, et al., Defendants-Respondents Harry P. Diamandis, M.D., et al., Defendants Bronx Anesthesia Group, P.C., et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

March 14, 1995.

E.J. Guardaro, Jr., for respondents.

D.J. Scialabba, for appellants.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered January 28, 1993, which denied the cross-motion of defendants Bronx Anesthesia Group, P.C. and Zenaida S. Villafania, M.D. for an order granting summary judgment dismissing the complaint and all cross-claims against them, without prejudice to renewal upon completion of discovery, unanimously reversed, on the law, without costs, to the extent appealed from, the motion granted and the complaint dismissed, as against said defendants.

The infant plaintiff, born by caesarean section on June 20, 1979 at the Bronx-Lebanon Hospital, suffered brain damage three days after his birth. Defendant doctors in this medical malpractice action maintain that, when plaintiff was born, he was in perfect health, sustaining brain damage when he inhaled milk during a feeding three days later. Defendants-appellants Bronx Anesthesia Group, P.C. and Zenaida S. Villafania, M.D. further assert that Dr. Villafania did not assume her responsibilities as anesthesiologist during the surgery until 1:30 p.m., more than one-half hour after the infant Suta Tungsupong was born at 12:56 p.m. Prior to that time, anesthesia duties were performed by Beverly Watson, R.N., a nurse anesthetist employed by the Bronx-Lebanon Hospital Center. The record does not reflect any negligence by Nurse Watson in her administration of anesthesia; but even assuming her negligence, it is asserted that such negligence is not attributable to Villafania and the anesthesia group employing her.

Defendant Bronx-Lebanon Hospital Center maintains that there are questions of fact concerning whether management of the labor and delivery was appropriate. With respect to defendants-appellants, the hospital notes, "Notwithstanding Dr. Villafania's affidavit, the operative report from the caesarean section lists Dr. Villafania as the anesthetist, without mention of Dr. [sic] Watson." According to Bronx-Lebanon, there is a question of fact with respect to Villafania's duties as anesthetist and, particularly, her responsibility to supervise Nurse Watson.

Plaintiff opposed summary judgment motions interposed by the obstetricians, Harry P. Diamandis and Nissim Alhadeff and the Clinton Medical Group to which they belong. Plaintiff did not, however, oppose the cross-motion made by defendants Bronx Anesthesia Group and Dr. Villafania, which motion was opposed by the hospital. Supreme Court denied all the motions for dismissal "without prejudice to renewal upon completion of all discovery in this matter."

The affidavit of Dr. Villafania in support of her cross-motion states that she was not present during the birth of the child and that her involvement was limited to end-care anesthesia and treatment of the mother. Despite the hospital's...