The Manhattan plaintiff alleges that on or about November 29, 2001 through December 13, 2001 he came under the medical care and treatment of MD, a physician specializing in the field of transplant surgery. On or about May 2001 through June 13, 2002, the plaintiff came under the care of MD2., a physician specializing in the field of internal medicine. He also came under the care of the defendant MD3, M.D. who holds himself out as a Long Island physician specializing in surgery. From about November 28, 2001 through December 13, 2001, the plaintiff came under the care of a Memorial Hospital located in Rochester, New York where he had his kidney donor surgery performed. The plaintiff claims, inter alia, that the defendants were negligent in his care and treatment in failing to properly perform a laparoscopic donor nephrectomy; prematurely discharging him after the surgery with a retroperitoneal hematoma; causing the pancreas injury and failure; causing an inflammatory nidus and pancreatic pseudocyst; in causing a pancreaticocolenic fistula; causing the plaintiff to undergo exploratory laporatomy and drainage of a large intra abdominal abscess and closure of a colonic fistula, and causing the plaintiff to undergo a colosotomy and colostomy take-down surgical procedure to the pancreas.
MD2 seeks an order granting summary judgment dismissing the complaint asserted against him on the basis that he did not depart from good and accepted medical practice during his care and treatment of the plaintiff and that the action is time barred as although the plaintiff saw MD2 on four occasions following his surgery, all MD2 did was order laboratory tests and CT scans and then refer the plaintiff for surgical management. MD2 claims his last involvement with the plaintiff was on January 2002 and the action was not commenced until September 2004.
MD3, who is represented by the same attorneys as MD2 seeks summary judgment dismissing the complaint on the basis that there were no departures by him that proximately caused the plaintiffs spinal injuries.
Based upon the foregoing, it is determined that there are factual issues raised by the plaintiffs expert on the issue of negligence which preclude the granting of summary judgment dismissing the complaint against MD3. In that MD1 did not comment on the issue of informed consent, the burden did not shift to the plaintiff to raise a factual issue as to lack of informed consent.
Accordingly, that part of motion (001) for dismissal of the complaint as asserted against MD3. is denied as to the causes of action premised upon negligence and informed consent.
Turning to motion (002) the defendants, MD1 and the Memorial Hospital, seek to preserve their right under Article 16 as against M.D2. and M.D3. at the time of trial in the event that this Court should grant MD2 and MD3 summary judgment dismissing the complaint against them.
It is determined that in light of the motion for summary judgment having been denied and the complaint was not dismissed as asserted against MD2 that part of the moving defendants’ application has been rendered academic and is denied as moot
Turning to that part of the motion by defendants MD1 and the Memorial, it is determined that the moving defendants have not demonstrated entitlement to the relief requested. Article 16 of the CPLR provides for several liability for non-economic loss when the liability of a joint tortfeasor is found to be fifty percent or less of the total liability assigned to all persons liable, subject to specified exceptions, see, CPLR 1601; Maria E. v West Associates. 188 Misc 2d 119 [Sup Ct, Bronx County, 2001]). In Yanatos v Pogo et ah (Spinola, J.) (Sup Ct Nassau, April 25, 2006), the court set forth that since a motion for summary judgment is the functional equivalent of a trial, it follows therefrom that any defendant intending to obtain the limited liability benefits of Article 16 of the CPLR must, under penalty of forfeiture, adduce proof on point in admissible form in response to the prima facie case presented, citing Drooker v South Nassau Communities Hospital. 175 Misc2d 181 [NY Sup. Ct. 1998]). In Drooker.supra, following the granting of summary judgment in favor of a physician in a medical malpractice case, the remaining defendants who failed to oppose said physician’s prima facie showing of entitlement to summary judgment and failed to make any evidentiary showing regarding that physician’s responsibility for plaintiffs spinal injury, thereby forfeited their opportunity to limit their liability with respect to that physician’s acts or omissions under Article 16 of the CPLR.
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