Ashley v. Upstate Emergency Medicine, Inc.

Summary

The New York Appellate Division, Fourth Department unanimously affirmed an order denying defendants' motion for summary judgment in a medical malpractice action involving an alleged failure to diagnose and treat a spinal abscess. The court held that plaintiff's expert submissions raised triable issues concerning the applicable standard of care and alleged departures by the physician assistant. The court also concluded that claims against the supervising physician and his employer could proceed based on alleged supervisory responsibility and respondeat superior.

Holdings

1. Plaintiff's expert, a New Jersey-licensed emergency-room physician, was sufficiently qualified to opine on the applicable New York standard of care because he had worked in New York emergency rooms, worked with New York physicians, and stated that New York applied the same emergency-room standard of care as New Jersey and nationally.
2. Plaintiff raised a triable issue of fact concerning whether Tschudi departed from the applicable standard of care by submitting expert affidavits from a qualified emergency-room physician.
3. Klimek was not entitled to summary judgment because he failed to establish as a matter of law that he appropriately supervised Tschudi or that he was not medically responsible for her alleged malpractice.
4. UEM was not entitled to summary judgment because plaintiff's claims against Klimek remained viable and it was undisputed that Klimek was employed by UEM.

Questions Presented

1. Whether defendants established entitlement to summary judgment by showing that they did not depart from the applicable medical standard of care or that any departure did not proximately cause plaintiff's injuries.
2. Whether plaintiff's New Jersey-licensed emergency-room expert was sufficiently familiar with the New York standard of care to raise a triable issue of fact.
3. Whether plaintiff's expert affidavits were conclusory or speculative.
4. Whether Klimek established as a matter of law that he appropriately supervised Tschudi and was not medically responsible for her alleged malpractice.
5. Whether UEM was entitled to summary judgment on plaintiff's respondeat superior claim because Klimek was employed by UEM.

Disposition

affirmed