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This medical malpractice action commenced on behalf of the plaintiff

This medical malpractice action commenced on behalf of the plaintiff is premised upon the alleged negligence of defendants in the placement of spinal cordstimulator leads, and the alleged departures from good and accepted standards of care relative thereto, causing plaintiff to suffer a spinal injury, loss of motor function bilaterally, the inability to walk requiring the use of a wheelchair, loss of sensation and reflexes, hypersensitivity, incontinence of bowel and bladder, exacerbation of prior conditions, diminution of a chance of recovery, inability to work, conscious pain and suffering, and loss of enjoyment of life. It is undisputed that on January 26, 2007, the plaintiff came under the care and treatment of an anesthesiologist, the defendant, for pain management relative to a history of leg pain and pain in her right upper extremity. Implantation of a spinal cord stimulator was recommended for which she was admitted to the Hospital at Syosset on February 27, 2007.

A Lawyer said that, the Long Islanddefendants seek summary judgment dismissing the complaint on the bases that they fully complied with the standard of care during the care and treatment of plaintiff and that they did not cause or contribute to the plaintiff’s spinal injuries. The Hospital further contends that it is not responsible for the actions of the private attending physicians rendering care to plaintiff.

The issue in this case is whether defendants are guilty of medical malpractice, and thus, liable for the spinal injuries sustained by the plaintiff.

The Court said that 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 eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. The movant has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must “show facts sufficient to require a trial of any issue of fact”. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.

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. 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. 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.

To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert’s affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant’s acts or omissions were a competent-producing cause of the injuries of the plaintiff. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury”.

In support of motion for summary judgment, the doctor has submitted an attorney’s affidavit, copies of the summons and complaint, his answer and the plaintiff’s verified bill of particulars; certified copy of the plaintiff’s medical records; the unnotarized affidavit of the defendant’s expert; and the unsigned transcripts of the examinations before trial of defendant. The unsigned copies of the transcripts of the examinations before trial are not in admissible form as required by CPLR 3212, nor are they accompanied by an affidavit pursuant to CPLR 3116, and, therefore, are not considered on this motion. The affidavit of the Manahattan doctor is not notarized and therefore is not in admissible form to be considered on a motion for summary judgment.
In cross motion, the Hospital has submitted, an attorney’s affirmation; the expert affirmation of the doctor; the affidavit dated October 29, 2010; the moving defendants’ answers, plaintiff’s verified bill of particulars; a partial and uncertified copy of the plaintiff’s hospital record which is not in admissible form to be considered on a motion for summary judgment; unsigned copies of the transcripts of the examinations before trial of defendant dated March 5, 2010 and the doctor dated May 25, 2010 which are not in admissible form as required by CPLR 3212 nor are they accompanied by an affidavit pursuant to CPLR 3116, and, therefore, are not considered on this motion. An expert’s opinion must be based on facts in.

Here, the evidentiary submissions establish that the doctor provided care and treatment to plaintiff and monitored her condition during insertion of the spinal cord stimulator leads and prior to her discharge. The doctor opined that discharging the plaintiff was not done on the authority of the hospital staff and that the doctor testified that the decision to discharge a patient is made by the covering anesthesiologist and surgeon. There is no admissible evidentiary proof that the doctor consulted with the attending physician about plaintiff’s severe pain and otherwise considered having her seen by a neurologist and neurosurgeon prior to discharge. Based upon the foregoing, motion of the doctor for dismissal of the complaint as asserted against him is denied.

A hospital cannot be held vicariously liable for the malpractice of a treating physician who is not an employee of the hospital. Here, the unrefuted admissible evidence establishes that the defendant physicians were private attending physicians who were not employees of the Hospital; and, therefore, the Hospital is not vicariously liable for their actions or omissions. The unrefuted admissible evidence does not establish that employees of defendant Hospital departed from good and accepted standards of care in their care and treatment of plaintiff. Based upon the foregoing, the Hospital has demonstrated prima facie entitlement to summary judgment dismissing the complaint as asserted against it, and the plaintiff has not raised a factual issue to preclude summary judgment being granted to the Hospital.

Accordingly, the Court held that the motion for summary judgment is granted and the complaint of this action as asserted against the Hospital is dismissed with prejudice.

If you have sustained spinal injuries while being operated in the hospital due to the medical malpractice of the attending physicians, seek the help of a Suffolk Medical Malpractice Attorney and/or Suffolk Spinal Injury Attorney in order to advice you on how you can claim damages against the party at fault. Our Suffolk Personal Injury Attorney can represent your case and make sure that you will be properly compensated. Call us at Stephen Bilkis and Associates for free consultation.

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