Deane v Islam
Annotate this CaseDecided on May 20, 2009
Supreme Court, Richmond County
Rita Deane and Vincent Deane, Plaintiffs,
against
Hasmatul Islam, M.D., Michele Germain, M.D., Allan Hewitt, M.D., and ST. Vincent's Medical Center, Defendants.
100633/05
Philip G. Minardo, J.
Upon the foregoing papers, the motion for summary judgment and dismissal of the complaint by defendant Allan Hewitt, M.D. is denied.
This is a medical malpractice action in which it is alleged that Dr. Allan Hewitt, and other named defendants were negligent, inter alia, in failing to timely diagnose plaintiff Rita Deane (hereinafter "plaintiff") with appendicitis. The co-plaintiff, Vincent Dean, claims loss of consortium (see Plaintiffs' Bill of Particulars, para 15).
To the extent relevant, on November 11, 2004, plaintiff appeared at the emergency room of St. Vincent's Medical Center of Staten Island (hereinafter "St. Vincent's") with complaints of abdominal pain. Plaintiff was there examined by co-defendant Dr. Hasmatul Islam, who referred her to the hospital's OB/GYN clinic where she was seen the next day by co-defendant Dr. Michele Germain. Plaintiff repeated her complaints of abdominal pain in her "lower right side" to Dr. Germain (EBT of plaintiff, p 33). As a result of her assessment of plaintiff's abdominal pain and history of menorrhagia, Dr. Germain scheduled plaintiff for a pelvic sonogram on November 29, 2004. However, when plaintiff again appeared at the emergency room of St. Vincent's on November 14, 2004 complaining of sharp abdominal pain, a CAT scan was performed; a perforated appendix was diagnosed; and plaintiff subsequently underwent an exploratory laparotomy.
In his motion for summary judgment, Dr. Hewitt affirms that it is undisputed that he never performed a physical examination of the plaintiff or even spoke with her regarding her medical condition (EBT of Dr. Hewitt, pp 21-25; EBT of plaintiff, p 40). Since it is well settled that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship (see Gullo v. Vassar Bros Hosp, 282 AD2d 708 [2nd Dept 2001]), the foregoing evidence is prima facie sufficient to demonstrate Dr. Hewitt's right to judgment as a matter of law. Accordingly, the burden of proof has shifted onto plaintiffs to raise a triable issue of fact as to the existence of any physician-patient relationship (id.).
In opposition, plaintiffs allege that Dr. Hewitt was actively involved in plaintiff's treatment; that he supervised Dr. Germaine in regards to her plan for treating plaintiff; and that he subsequently formulated his own differential diagnosis and subjected plaintiff to an endometrial biopsy. In support, plaintiff points to the deposition of Dr. Germain, who testified that it was custom and [*2]practice at the OB/GYN clinic that a resident such as herself examine the patient and present the case to the attending physician, in this case Dr. Hewitt (id. at p 34), who would either agree with her management of the case or disagree and issue additional orders (id. at p 35-36). Similarly, Dr. Hewitt testified at his deposition that Dr. Germain was a resident in the subject clinic , and that she was under his direct supervision (EBT of Dr. Hewitt, p 15). With regard to matters of general procedure, Dr. Hewitt agreed that a resident would present a diagnosis and treatment plan to the attending physician, who would then provide the resident with further instructions; make a determination as to when to "bring the patient back"; and "would stamp and sign [the resident's treatment] note" (id. at p 19-20). Here, after plaintiff's case was presented to him by Dr. Germain, Dr. Hewitt agreed with her management plan and recommended that an endometrial biopsy be performed upon the patient's next visit (id. at p 39-40).
Plaintiffs have also submitted an affidavit from an expert obstetrician and gynecologist, who opined with a reasonable degree of medical certainty that a physician-patient relationship was thereby created between Dr. Hewitt and plaintiff (Plaintiffs' Exhibit "C"), and that the failure of the former to include appendicitis in his differential diagnosis of a patient complaining of sharp lower abdominal pain for more than one day constituted a departure from good and accepted medical practice. Said expert further opined that said departure was a competent producing cause of plaintiff's subsequent surgeries, extended hospitalizations, scarring and infections (id.). Finally, plaintiffs' expert opined that a poor medical history had been taken from plaintiff, and that blood and urine tests should have been performed upon her visit on November 12, 2004 (id.).
A medical malpractice action may be based upon allegations that a physician negligently gave advice to a patient as to the recommended course of treatment (see Bienz v. Central Suffolk Hosp, 163 AD2d 269 [2nd Dept 1990]), and that the question of whether the furnishing of such advice provides a sufficient basis upon which to predicate an implied physician-patient relationship is ordinarily an issue of fact for the jury (see Bienz v. Central Suffolk Hosp, 163 AD2d at 269). Moreover, it is well settled that an implied physician-patient relationship may arise when a physician's negligent advice is communicated to a patient through another health care professional (see Campbell v. Haber, 274 AD2d 946 [4th Dept 2000]). Nevertheless, the imposition of liability on one doctor for the negligent acts of another has been largely limited to situations of joint action in the diagnosis or treatment of the patient or some other element of control by the advising physician over the course of treatment pursued by the latter (see Mandel v. New York County Pub Adm'r, 29 AD3d 869, 870-871 [2nd Dept 2006]; Reeck v. Huntington Hosp, 215 AD2d 464 [2nd Dept 1995]; Graddy v. New York Med Coll, 19 AD2d 426 [1st Dept 1963]). Thus, it has been held that one physician can be held jointly liable for the active negligence of another so long as the first physician possessed some measure of control over the course of treatment pursued by the second (see Ross v. Mandeville, 45 AD3d 755, 757 [2nd Dept 2007] [internal quotation marks and citations omitted]). As a result, Dr. Hewitt, as the supervising physician, can be held vicariously liable for the negligent acts, if any, of Dr. Germain (id.).
Accordingly, since a triable issue of fact has been shown to exist regarding the level of Dr. Hewitt's participation in plaintiff's diagnosis and treatment, his motion for summary judgment must be denied (see Wienk-Evans v. North Shore Univ Hosp at Glen Cove, 269 AD2d 443 [2nd Dept 2000]; Santos v. Rosing, __AD3d__, 875 NYS2d 59 [1st Dept 2009]; Campbell v. Haber, 274 AD2d at 946; Cogswell v. Chapman, 249 AD2d 865, 867 [3rd Dept 1998]; cf. Huffman v. Linkow Inst for Advanced Implantology, Reconstructive & Aesthetic Maxillo-Facial Surgery, 35 AD3d 214, 216-217 [1st Dept 2006]; Sawh v. Schoen, 215 AD2d 291 [1st Dept 1995]).
The motion being based solely on the purported absence of any physician-patient relationship between Dr. Hewitt and the plaintiff, any further issues regarding compliance with the appropriate standard of care and/or proximate cause are not properly before the Court at this time (see Santos v. Rosing, supra ).
Accordingly, it is
ORDERED that the motion for summary judgment by defendant Allan Hewitt, M.D. is denied.ENTER,
s/ Philip G. Minardo
J.S.C.
DATED: May 20, 2009
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