

MacDonald v Beth Israel Med. Ctr. (2016 NY Slip Op 01114)





MacDonald v Beth Israel Med. Ctr.


2016 NY Slip Op 01114


Decided on February 16, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 16, 2016

Tom, J.P., Acosta, Moskowitz, Gische, JJ.


223 800048/11

[*1]Kathleen MacDonald, Plaintiff-Respondent,
vBeth Israel Medical Center, et al., Defendants-Appellants, Jason M. Bratcher, M.D., Defendant.


Carroll, McNulty & Kull LLC, New York (Frank J. Wenick of counsel), for appellants.
Law Offices of Jeffrey S. Lisabeth, Mineola (Jeffrey S. Lisabeth of counsel), for respondent.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered on or about September 15, 2014, which, to the extent appealed from, denied the motion of defendants Beth Israel Medical Center and Shamit Patel, M.D. for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Beth Israel and Dr. Patel established their entitlement to judgment as a matter of law by submitting evidence showing that defendant Dr. Jason Bratcher, plaintiff's attending physician, followed plaintiff's care throughout her stay at Beth Israel. This included the period prior to plaintiff's discharge when she allegedly showed symptoms of infection, and the hospital's staff, including Dr. Patel, followed Dr. Bratcher's orders (see Udoye v Westchester-Bronx OB/GYN, P.C., 126 AD3d 653, 654 [1st Dept 2015]).
In opposition, plaintiff failed to raise an issue of fact. Although plaintiff's expert asserted that Beth Israel was liable because its records indicated that its employee, Dr. Patel, was the "attending of record," Dr. Patel's actual function was to serve as an in-hospital attending physician to those patients, unlike plaintiff herein, admitted without private attending physicians of their own. Furthermore, the record shows that the functions that Dr. Patel performed were routine tasks, such as entering orders for blood work, pain control, hydration, and antibiotic administration for plaintiff's post-surgical complications (see Filippone v St. Vincent's Hosp. & Med. Ctr. of N.Y., 253 616, 618 [1st Dept 1998]). Dr. Patel deferred decisions as to plaintiff's surgical and gastrointestinal care to her private attending, Dr. Bratcher, and exercised no "independent medical judgment" in plaintiff's medical treatment (Walter v Betancourt, 283 223, 224 [1st Dept 2001]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 16, 2016
CLERK


