Cordero v New York Presbyt. Hosp.
Annotate this CaseDecided on February 28, 2005
Supreme Court, New York County
Zoila Cordero, as Administratrix of the Estate of Modesto Toribio, Deceased, Plaintiff,
against
New York Presbyterian Hospital, Jay Mohr, M.D., Marshall Freeman, M.D., Defendants.
104640/01
Stanley L. Sklar, J.
This application by defendant Dr. Mohr for summary judgment is denied without prejudice to renewal on proper papers.
The motion papers include an affidavit from Dr. Jay Mohr dated March 4, 2004. He states that at the time of the plaintiff's accident's admission to and stay at New York Presbyterian Hospital in March, 1999 he was an attending physician in the hospital's neurology department. He further declares that he "did not have any involvement in the care or treatment of the decedent, Modesto Toribio, nor did I have any contact whatsoever with the decedent or his family".
The complaint asserts a cause of action grounded on an alleged failure to diagnose a stroke when the decedent presented to the hospital. Dr. Mohr's name was listed as the admitting physician on the Admission Sheet.
Plaintiff opposes the application asserting that there is a signature on the admission sheet which it is speculated could be Dr. Mohr's since it is illegible. Plaintiff urges that Dr. Mohr's typewritten name on the Admission Sheet creates an issue of fact. Plaintiff offers to discontinue as against Dr. Mohr if the defendants provide both: (1) the name of the admitting physician, and (2) a deposition of that doctor.
Defendant's reply raises the point that Dr. Mohr does not merely state that he doesn't recall seeing the decedent. Rather, he affirmatively disclose that he had no involvement whatsoever with decedent or his family.
DISCUSSION
Dr. Mohr does not provide any explanation of how his name came to be placed on the admitting sheet. His counsel relates the findings of Dr. Freedman, then a neurology resident, who is also a named defendant. However, Dr. Freedman's activities do not, of themselves, exclude activity by Dr. Mohr. Nor do we have an explanation by Dr. Mohr's counsel as to why his name is typed on the admitting sheet other than the conclusory assertion by counsel of a mistake. We do not have an ebt of Dr. Freedman that negatives any involvement of Dr. Mohr. It [*2]must be borne in mind that Dr. Mohr's name was typed in, so we are not even dealing with the occasional errors in the use of a name plate.
In Latiff v. Wyckoff Heights Hospital, 144 AD2d 650 (2nd Dept, 1988), the moving defendant denied any recollection of treating or examining the infant plaintiff. His affidavit stated that he had reviewed her hospital records and that he never made any entries in her chart. With regard to the two times that his name appeared on the infant plaintiff's chart, "he gave reasons for its appearance which were unrelated to any actual treatment of the infant". Id at 651 On that record, summary judgment should have been granted.
In Thomas v. Good Samaritan Hospital, 167 Misc 2d 644 (Supreme Ct., Suffolk, 1996) affd. re another portion of the order 237 AD2d 429 (2nd Dept, 1997) a defendant physician was granted summary judgment when he never treated or even saw plaintiff but where his name appeared on the'Addressograph' portion of the record, because he explained that his name appeared on all "Addressographs" for all emergency room patients in his capacity as the director of emergency services at Good Samaritan Medical Center".
In the instant case no explanation other than counsel's conclusory assertion of mistake is given for the typewritten appearance of Dr. Mohr's name. Nor is the Court provided with any ebt transcript, either of Dr. Mohr, or Dr. Freedman, or anyone else that would provide an explanation as to why his name appears or otherwise confirm Dr. Mohr's total lack of involvement, by consultation, supervision, treatment or examination of the decedent. Since such materials may be forthcoming in the future, the denial of this motion is without prejudice to renewal on proper papers.
Since the movant was not successful on this application his request for sanctions is denied.
The foregoing constitutes the opinion, decision and order of the Court.
Dated:February 28, 2005
New York, NY
J.S.C.
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