Summary
This Appellate Division, Fourth Department memorandum affirms an order granting summary judgment in favor of healthcare defendants while denying a physician-defendant's motion for summary judgment in a medical malpractice and wrongful death action. The court held that plaintiff's expert affidavits raised triable issues of fact regarding whether prescribing baclofen alongside Norco deviated from the standard of care and proximately caused the decedent's death. Conversely, the court found that the healthcare entities met their initial burden to dismiss claims against them by showing the physician was not their employee and that no vicarious or ostensible agency liability applied. The court also upheld the trial court's discretion to accept late expert submissions and settle the record on appeal.
Topics
Practice areas
Questions Presented
- Whether the plaintiff’s expert testimony creates a triable issue of fact as to the physician’s deviation from the standard of care and proximate causation.
- Whether Greenfield and Niagara are vicariously liable for the physician’s alleged negligence.
- Whether the court properly exercised discretion to accept late expert CVs and amend the order.
- Whether the appeal of the amended order should be dismissed as it makes no substantive change.
Holdings
- Summary judgment for defendant‑physician Patrick Siaw was denied because the experts’ opinions raise genuine issues of fact on both the standard of care and causation.
- Summary judgment for Greenfield and Niagara was affirmed because they did not employ the physician and did not control his work, and no ostensible agency existed.
- The court properly exercised its discretion to accept the late expert CVs and amend the order; no error was found.
- The appeal and cross‑appeal of the amended order were dismissed because the amendment made no substantive change.
Key quotations
“On a summary judgment motion in a medical malpractice action, a defendant has "the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries" (Occhino v. Fan, 151 AD3d 1870, 1871).” (at 1870-1871)
“"Once a defendant meets the initial burden, [t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact... only as to the elements on which the defendant met the prima facie burden" (Lewis v. Sulaiman, 217 AD3d 1443, 1444).” (at 1444)
Factual background
After hip replacement surgery, the decedent was transferred to Greenfield for rehabilitation. A physician continued Norco and later prescribed baclofen, which the decedent received in 10 mg doses. The decedent subsequently suffered altered mental status, was readmitted, and later died of septic shock from pneumonia. Plaintiff alleges the combined use of baclofen and Norco deviated from the standard of care and that Greenfield and Niagara are vicariously liable for the physician’s negligence.
Procedural history
The Supreme Court, Erie County denied in part defendant‑physician Siaw’s summary‑judgment motion and granted summary judgment for Greenfield and Niagara. The parties appealed the order.