Opinion
12-22-2016
Desiree SMITH, as Administratrix of the Goods, Chattels and Credits which were of Connie Hobson, deceased, etc., Plaintiff–Appellant, v. Frank WATKINS, M.D., et al., Defendants, St. Barnabas Hospital, Defendant–Respondent.
William Schwitzer & Associates, New York (Dennis A. Breitner of counsel), for appellant. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondent.
William Schwitzer & Associates, New York (Dennis A. Breitner of counsel), for appellant.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 19, 2015, which, to the extent appealed from as limited by the briefs, granted the motion of defendant St. Barnabas Hospital for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying plaintiff's request for an adjournment to permit her to provide a supplemental expert affirmation after St. Barnabas provided three pages from its expert's affirmation that had been inadvertently omitted. The omitted pages were largely repetitive of the remainder of the affirmation, and the substance of those pages was recounted in the motion papers.
Plaintiff alleges that two physicians at St. Barnabas, defendants Watkins and Erlikh, departed from the standard of medical care in treating the decedent, who was admitted to the hospital after fracturing her hip. Assuming that St. Barnabas could be held vicariously liable for malpractice committed by those physicians, Drs. Watkins and Erlikh were granted summary judgment dismissing the claims against them and plaintiff has not pursued an appeal as to those claims. As there is no liability for plaintiffs' decedent's injuries or wrongful death against Drs. Watkins and Erlikh, there can be no vicarious liability against the hospital (see Kukic v. Grand, 84 A.D.3d 609, 924 N.Y.S.2d 50 [1st Dept.2011] ). Assuming the physicians acted with apparent agency on behalf of the hospital, liability is still “contingent upon the plaintiff having a viable claim against the physician who treated [her]” (Polgano v. Christakos, 104 A.D.3d 501, 502, 961 N.Y.S.2d 133 [1st Dept.2013] ).
Plaintiff's argument that the hospital could still be found liable based on its overall negligence or negligence of other employees in treating decedent, who was a service patient, is unavailing (see Escobar v. New York Hosp., 111 A.D.2d 128, 129, 489 N.Y.S.2d 508 [1st Dept.1985] ). Plaintiff did not allege or provide evidence to support a claim of independent negligence against St. Barnabas. Plaintiff's medical expert only addressed the negligence of defendant doctors, not of St. Barnabas' staff, and there is no claim that any doctor's orders were so clearly contraindicated that St. Barnabas' staff should have questioned the orders. Accordingly, there is no basis for finding that the hospital staff committed independent acts of negligence (see Suits v. Wyckoff Hgts. Med. Ctr., 84 A.D.3d 487, 488, 922 N.Y.S.2d 388 [1st Dept.2011] ; Walter v. Betancourt, 283 A.D.2d 223, 224, 724 N.Y.S.2d 728 [1st Dept.2001] ).
We have considered plaintiffs' remaining contentions and find them unavailing.
FRIEDMAN, J.P., MOSKOWITZ, WEBBER, KAHN, GESMER, JJ., concur.