Summary Judgment affirmed by Appellate Division, Second Department

by | Jan 14, 2022 | Case Results, Medical Malpractice | 0 comments

Partner Anina H. Monte and Senior Associate Gianna Crespo were successfully granted Summary Judgment in the Appellate Division, Second Department on behalf of our client Hospital. The patient alleged that the orthopedic surgeon improperly performed an X-Stop surgical procedure at the Hospital, without his informed consent, resulting in worsening of his back pain, impairing his ability to walk and drive, and causing permanent disability such that he was unable to return to work as a taxi driver. The patient raised separate causes of action, claiming that the Hospital was vicariously liable for the surgeon’s improper performance of the procedure and that the Hospital had failed to obtain the patient’s informed consent after learning that the contemplated procedure was changed minutes before the patient entered the operating room. The patient’s wife also asserted derivative causes of action against the surgeon and the Hospital.

Gianna Crespo successfully argued that the codefendant private attending physician was not a hospital employee and that there was no exception to the general rule that would allow a Hospital to be liable for the acts of a private attending physician. With respect to the cause of action predicated on lack of informed consent, we established that the surgeon, not the hospital, was required to obtain the patient’s informed consent and that there was no reason for the Hospital to become involved in the plan set forth by the patient’s private treating surgeon.

The Appellate Division affirmed the lower Court’s holding that the patient failed to raise a triable issue of fact, particularly in regard to the last minute change in surgical procedure. In addition to affirming the lower Court’s holding regarding dismissal of all causes of action against the Hospital, the Appellate Division also affirmed that the bill of costs would be awarded to the Hospital. Gianna Crespo prepared the Respondent’s Brief which was then orally argued by Anina Monte in the Second Department.