Johnson v North Shore Univ. Hosp.

[*1] Johnson v North Shore Univ. Hosp. 2010 NY Slip Op 51180(U) [28 Misc 3d 127(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-146 Q C.

Isaiah Worrel Johnson, by His Mother and Natural Guardian, Jeannine S. Worrel, and Jeannine S. Worrel, Individually, Respondents,

against

North Shore University Hospital and Boris M. Petrikovsky, Appellants, -and- New York University School of Medicine, Soheir Haram-Mojrabet, Saul Baruch, Dr. "John" Choi, Dr. C. Giambruno and Dr. A. Gottesman, Defendants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered December 15, 2008. The order, insofar as appealed from, denied a motion by defendants North Shore University Hospital and Boris M. Petrikovsky for summary judgment dismissing the complaint insofar as asserted against defendant Boris M. Petrikovsky.

ORDERED that the order, insofar as appealed from, is reversed without costs, the motion by defendants North Shore University Hospital and Boris M. Petrikovsky for summary judgment dismissing the complaint insofar as asserted against defendant Boris M. Petrikovsky is granted, and the action against the remaining defendants is severed.

In the instant action for medical malpractice, plaintiffs allege that the negligence of defendant North Shore University Hospital (North Shore) and defendant Boris M. Petrikovsky (Petrikovsky), among others, in the care and treatment of plaintiffs at the time of the labor and delivery of plaintiff Jeannine S. Worrel (Worrel) and the birth of her son, the infant plaintiff Isaiah Worrel Johnson (Johnson), caused Johnson to suffer a fractured left femur.

Defendants North Shore and Petrikovsky moved for summary judgment dismissing the complaint insofar as asserted against Petrikovsky. In support of the motion, Petrikovsky submitted an affidavit in which he averred that he had determined, after a review of plaintiffs' North Shore medical records, that at no time had he rendered any medical treatment to plaintiffs or supervised any of North Shore's medical providers who had rendered care and treatment to [*2]plaintiffs. He further stated that his name appeared in Worrel's labor and delivery records because North Shore's patient registration system required the entry of the name of an attending physician before a patient could be registered in the Emergency Department and before any tests could be ordered. His deposition testimony, submitted in support of the motion, was to the same effect. In opposition to the motion, plaintiffs' counsel noted that throughout North Shore's medical records, Petrikovsky's name was listed as Worrel's attending physician and that Johnson's leg was fractured at some point after he was delivered. he Civil Court denied the motion, and the instant appeal ensued.

In a medical malpractice action, liability may generally not be imposed in the absence of a physician-patient relationship, which requires the physician to have either affirmatively treated the patient or affirmatively advised the patient as to a course of treatment (see Badolato v Rosenberg, 67 AD3d 937 [2009]). Such a relationship arises "when the professional services of a physician are rendered to and accepted by another for the purposes of medical or surgical treatment" (Lee v City of New York, 162 AD2d 34, 36 [1990]). Nor may a defendant be found vicariously liable for the conduct of another in the absence of proof that that person acted under the defendant's control or supervision (see Ellis v Brookdale Hosp. Med. Ctr., 122 AD2d 19 [1986]).

In the instant case, defendants, through the submission of Petrikovsky's affidavit and deposition testimony, and North Shore's medical records, established that there was no physician-patient relationship between Petrikovsky and plaintiffs, and that Petrikovsky did not supervise any of the medical providers who rendered care and treatment to plaintiffs. As Petrikovsky made a prima facie showing that he did not examine or treat plaintiffs and that he did not act in a supervisory capacity with respect to those who did, plaintiffs were required to come forward with evidentiary facts to rebut the physician's showing and demonstrate the existence of a triable issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]).

Plaintiffs failed to demonstrate that Petrikovsky ever had any contact with them, saw any records relating to the case, or even knew plaintiffs' names (see Ingber v Kandler, 128 AD2d 591 [1987]). Nor was any proof provided by plaintiffs to show that Petrikovsky acted in a supervisory role over those who examined or treated plaintiffs (see Ellis, 122 AD2d 19). The fact that Petrikovsky's name as the admitting physician was typed, stamped or printed in addressograph form on some of the hospital records was, standing alone, insufficient to defeat the motion for summary judgment (see Latiff v Wyckoff Hgts. Hosp., 144 AD2d 650 [1988]; Buonagurio v Drago, 65 AD2d 830 [1978]; see also Thomas v Good Samaritan Hosp., 167 Misc 2d 644 [Sup Ct, Suffolk County 1996]). We note that plaintiffs' counsel's "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" are similarly insufficient to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Accordingly, the order is reversed and the motion for summary judgment dismissing the complaint insofar as asserted against Petrikovsky is granted. Plaintiffs' action against the remaining defendants is severed.

Weston, J.P., Rios and Steinhardt, JJ., concur. [*3]
Decision Date: July 07, 2010