Leon-Martinez v Bethel Med. Family Practice

[*1] Leon-Martinez v Bethel Med. Family Practice 2013 NY Slip Op 52330(U) Decided on January 9, 2013 Supreme Court, Sullivan County Melkonian, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 9, 2013
Supreme Court, Sullivan County

Belen Leon-Martinez, an infant by her mother and natural guardian, Julia Martinez, Plaintiffs,

against

Bethel Medical Family Practice, Julie K. Starner, FNP and Imran Ahmed, M.D., Defendants.



11-802



The Law Office of Martha Gold

Attorneys for Plaintiffs

(Martha Gold, Esq., of Counsel)

445 West Street

Suite B

New York, New York 10011

Meiselman, Denlea, Packman, Carton & Eberz, P.C.

Attorneys for Defendants

(Richard J. Nealon, Esq., of Counsel)

1311 Mamaroneck Avenue

White Plains, New York 10605
Michael H. Melkonian, J.

This is an action to recover damages for medical malpractice. Plaintiffs allege that defendant Bethel Medical Family Practice, a professional corporation, defendant Julie K. [*2]Starner, FNP and defendant Imran Ahmed, M.D. negligently cared for and treated infant plaintiff Belen Leon-Martinez (hereinafter referred to as "plaintiff"), from April 7, 2010 through and including April 11, 2010. Specifically, plaintiff alleges that defendants were negligent in, inter alia, treating complaints of left otitis medica, cough, respiratory infection, purulent left eye drainage and left upper eyelid swelling, acute conjunctivitis and fever resulting in the spread of the infection and severe complications. Defendant Imran Ahmed, M.D. (hereinafter referred to as "Dr. Ahmed"), an employee and the sole shareholder of Bethel, seeks an order granting summary judgment dismissing the complaint on the issue of liability. Plaintiffs oppose and cross-move for summary judgment on the issue of medical malpractice.

Summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). To succeed when seeking dismissal of a cause of action on a motion for summary judgment, a party must submit evidence which negates any meritorious cause of action encompassed by the pleadings (Hirsh v Bert's Bikes and Sports, 227 AD2d 956; Wilder v Rensselaer Polytechnic Inst., 175 AD2d 534; Franceschi v Consolidated Rail Corp., 142 AD2d 915).

Under the doctrine of respondeat superior, a corporation, including a professional corporation, is liable for a tort committed by its employees acting within the scope of their employment (Yaniv v Taub, 256 AD2d 273). However, a shareholder, employee, or officer of a professional corporation is liable only for negligent or wrongful acts committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation (Moller v Talliuaga, 255 AD2d 563).

Dr. Ahmed asserts, at the time of the alleged malpractice, he was the sole shareholder and officer of the co-defendant professional corporation known as "Bethel Medical Family Practice" (hereinafter referred to as "Bethel"). He asserts that Bethel employs co-defendant Julie K. Starner, FNP (hereinafter referred to as "Nurse Starner") as a licensed Nurse Practitioner. He asserts that on April 7, 2010, plaintiff presented with typical upper respiratory infection and left otitis media. He asserts that Nurse Starner prescribed an appropriate broad spectrum antibiotic, amoxicillin, which he has prescribed on prior occasions for an almost identical presentation. It is undisputed that plaintiff thereafter developed an extremely rare complication. However, Dr. Ahmed asserts that the complaint should be dismissed against him because he never saw, treated or consulted with Nurse Starner regarding plaintiff. He points out that during the period of plaintiff's treatment at issue in this action, he was not even present at Bethel.The functions of a qualified "nurse practitioner" (Education Law § 6910) "may include the diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures within a specialty area of practice, in collaboration with a licensed [*3]physician qualified to collaborate in the specialty involved, provided such services are performed in accordance with a written practice agreement and written practice protocols" (Education Law §§ 6902[3][a]). No documentation pertaining to such a practice agreement or protocols is contained in the record. Moreover, Dr. Ahmed as the corporation's executive and sole shareholder and the collaborating licensed physician (Education Law §§ 6902[3][a]), Dr. Ahmed may — depending on the particular facts — be responsible for staff supervision and for the implementation of office policy and procedure (Yaniv v Taub, 256 AD2d 273). A physician/employer/supervisor does not have to be present and give directions at the precise time treatment is being rendered. Arguably, he is the one who established procedures to be followed. In view of this and other evidence in the record, this Court finds that triable issues of fact exist concerning the applicability of the doctrine of respondeat superior concerning Dr. Ahmed's possible liability for the allegedly negligent acts complained of by the plaintiff (see, Impastato v De Girolamo, 95 AD2d 845). Since Dr. Ahmed has failed to establish his entitlement to judgment as a matter of law, the burden has not shifted to plaintiffs to establish that there are issues of fact to preclude an order granting summary judgment (CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557), and it is unnecessary to reach the question of whether or not plaintiff has raised a triable issue of fact.

Plaintiffs have also failed to meet their initial burden on their cross-motion for summary judgment against all defendants.

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Stuart by Stuart v Ellis Hosp., 198 AD2d 559). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see, Derdiarian v Felix Contracting Corp., 51 NY2d 308). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see, Flore v Galang, 64 NY2d 999).

In support of their cross-motion, plaintiffs have submitted, inter alia, the redacted affirmation of their expert physician, but have not provided an unredacted copy of the affirmation to this Court. Inasmuch as summary judgment is the procedural equivalent of trial, and the credibility of expert witnesses often presents a significant issue for the trier of fact, it would be inappropriate to consider the redacted affirmation without an unredacted affirmation having been submitted to the court for in camera inspection (Marano v Mercy Hospital, 241 AD2d 48).[FN1] Failure to meet their initial burden requires denial of plaintiffs' [*4]motion for summary judgment regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Accordingly, both defendant's motion and plaintiffs' cross-motion are denied without costs.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for plaintiffs. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.

ENTER.

Troy, New York

Dated:September 15, 2014

___________________________________

MICHAEL H. MELKONIAN

Acting Supreme Court Justice

Papers Considered:

Notice of Motion dated August 22, 2012;

Affirmation of Richard J. Nealon, Esq., dated August 23, 2012, with exhibits annexed;

Affidavit of Imran Ahmed, M.D., dated August 21, 2012;

Memorandum of Law dated August 23, 2012;

Notice of Cross-Motion dated September 17, 2012;

Affirmation of Martha Gold, Esq., dated September 17, 2012, with exhibits annexed;

Affidavit of Julia Martinez dated September 11, 2012;

Affidavit of Philip Weiss, M.D. dated October 10, 2012;

Affirmation of Richard J. Nealon, Esq., dated October 12, 2012, 2012, with exhibits annexed;

Affirmation of Richard J. Nealon, Esq., dated October 17, 2012. Footnotes

Footnote 1:In the absence of Third Department case law to the contrary, this Court is bound by the Second Department's decision holding in Marano, supra, that a summary judgment motion must be denied if the movant submits a redacted expert's affidavit.