Wulbrecht v. Jehle

• Decision Date: 10 February 2012
• Citation: 92 A.D.3d 1213,2012 N.Y. Slip Op. 00999,938 N.Y.S.2d 707
• Parties: Nancy S. WULBRECHT, as Administratrix of the Estate of Robert M. Wulbrecht, Deceased, Plaintiff–Appellant, v. Dietrich JEHLE, M.D., et al., Defendants,andErie County Medical Center Corporation, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00999

92 A.D.3d 1213

938 N.Y.S.2d 707

Nancy S. WULBRECHT, as Administratrix of the Estate of Robert M. Wulbrecht, Deceased, Plaintiff–Appellant,

v.Dietrich JEHLE, M.D., et al., Defendants,andErie County Medical Center Corporation, Defendant–Respondent.

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

Feb. 10, 2012.

Brown Chiari LLP, Lancaster (Michael R. Drumm of Counsel), for Plaintiff–Appellant.

Roach, Brown, McCarthy & Gruber, P.C., Buffalo (John P. Danieu of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff, as administratrix of the estate of her husband (decedent), commenced this medical malpractice and wrongful death action seeking damages for the death of decedent, a psychiatric patient who committed suicide. Plaintiff appeals from an order denying her motion seeking to settle the prior order granting those parts of the motion of Erie County Medical Center Corporation (defendant) for summary judgment dismissing the direct claims against it. The order also granted plaintiff's motion for leave to reargue her opposition to those parts of defendant's motion for summary judgment dismissing the medical malpractice claims against it arising out of the acts and omissions of its employee, former defendant Denise Giessert, M.D., and, upon reargument, Supreme Court adhered to its original determination granting defendant's motion with respect to those claims. We affirm.

“[I]t is well settled that, ‘[i]n general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of [the attending physician's orders]’ ... In addition, ‘[a] resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene’ ” ( Lorenzo v. Kahn, 74 A.D.3d 1711, 1713, 903 N.Y.S.2d 222; see Muniz v. Katlowitz, 49 A.D.3d 511, 513, 856 N.Y.S.2d 120).

Defendant established its entitlement to judgment as a matter of law with respect to the medical malpractice claims against it arising out of the acts and omissions of Dr. Giessert, the resident psychiatrist who first met with decedent prior to his admission to the hospital. The evidence submitted by defendant demonstrated that Dr. Giessert was acting under the supervision of defendant Victoria Brooks, M.D. and defendant Hong Yu, M.D., the attending psychiatrists who were required to approve any orders signed by Dr. Giessert. Thus, defendant cannot be held liable for any alleged malpractice on the part of Dr. Giessert, inasmuch as she did not exercise any independent medical judgment, and the directions of Dr. Brooks and Dr. Yu did not so greatly deviate from normal practice that Dr. Giessert should have intervened ( see Lorenzo, 74 A.D.3d at 1713, 903 N.Y.S.2d 222; Muniz, 49 A.D.3d at 513–514, 856 N.Y.S.2d 120; Soto v. Andaz, 8 A.D.3d 470, 471, 779 N.Y.S.2d 104). P...