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Petty v. Pilgrim10/3/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., GLORIA GOLDSTEIN, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ.
DECISION & ORDER
(Index No. 38431/99)
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Lorna M. Clarke.
In opposition to the prima facie showing of the defendant Lorna M. Clarke demonstrating her entitlement to summary judgment dismissing the complaint insofar as asserted against her, the plaintiffs raised triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiffs' experts specified the departures allegedly committed by Dr. Clarke and the resultant injuries to the infant plaintiff that proximately resulted therefrom. Dr. Clarke's reliance throughout the plaintiff mother's labor on her alleged direct supervision by the attending private physician, Karl Pilgrim (now deceased), is not substantiated by the contemporaneous hospital records and nurses' notes. A triable issue of fact exists as to whether Dr. Clarke's actions or inaction were taken without Dr. Pilgrim's directives (see Pearce v Klein, 293 AD2d 593, 594).
Accordingly, the Supreme Court erred in granting Dr. Clarke's motion for summary judgment dismissing the complaint insofar as asserted against her.
PRUDENTI, P.J., GOLDSTEIN and CRANE, JJ., concur.
MASTRO, J., dissents and votes to affirm the order insofar as appealed from, with the following memorandum
While I agree with the majority's finding that the defendant Lorna M. Clarke succeeded in making a prima facie showing of her entitlement to judgment as a matter of law, I disagree with its conclusion that the plaintiffs raised a triable issue of fact in opposition thereto. Accordingly, I would affirm the order insofar as appealed from, granting her motion for summary judgment dismissing the complaint insofar as asserted against her.
The plaintiffs commenced this action against, among others, Karl Pilgrim and Lorna M. Clarke to recover damages for their alleged medical malpractice in treating the plaintiff Marie LaCroix Petty (hereinafter the mother) during her labor and ultimate delivery, by caesarian section, of the infant plaintiff Adrianna Petty at Downstate Medical Center, in Brooklyn, in 1994. The plaintiffs allege that the failure of Dr. Pilgrim, the mother's private attending physician at the time, and Dr. Clarke, then a third-year resident at the hospital, to perform a caesarian section earlier in the mother's labor, at a point when the fetal heart rate purportedly indicated fetal distress, resulted in injury to Adrianna.
Generally, neither a hospital nor its employees may be held vicariously liable for the acts of a private attending physician (see Hill v St. Clare's Hosp., 67 NY2d 72, 79; Soto v Andaz, 8 AD3d 470, 471; Orgovan v Bloom, 7 AD3d 770). "Further, a hospital is sheltered from liability in those instances where its employees follow the directions of the attending physician" (Walter v Betancourt, 283 AD2d 223, 224; see Cook v Reisner, 295 AD2d 466). As the proponent of the motion for summary judgment, Dr. Clarke sustained her burden of making a prima facie showing of her entitlement to judgment as a matter of law by submitting her own deposition testimony and sworn affidavit, patient progress notes generated contemporaneously with the treatment, and other
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