Senior Partner Anthony M. Sola and Associates Amy E. Korn and Fiachra P. Moody’s Motion for Summary Judgment was granted dismissing the defendant hospital from an action in Supreme Court, Queens County. This case involved a then 37-year-old married female who underwent ambulatory surgery including endometrial curettage, diagnostic hysteroscopy, lysis of adhesions and laparoscopic left ovarian cystectomy. The procedure was performed at the defendant hospital by the patient’s private physician, a co-defendant in this case. Following the procedure, the patient was noted to have a rash on the left lower portion of the abdomen near her left port site which she alleged was due to an allergic reaction to the sterile external preparation solution, ChloraPrep.
In the motion, we established our prima facie entitlement to Summary Judgment, asserting the alleged malpractice occurred under the supervision of the co-defendant, the plaintiff’s private physician. Secondly, we argued no separate and distinct allegations were asserted against the Hospital which would amount to a finding of direct liability. Lastly, we submitted that the use of ChloraPrep externally prior to a laparoscopy was wholly within the standard of care and is the most commonly used in New York area hospitals.
The Court granted our motion with respect to both vicarious and direct liability claims. Given the patient had been admitted under the supervision of the co-defendant doctor, the hospital could not be held liable for his acts or omissions. Further, the plaintiff’s opposition failed to establish that any orders given by the co-defendant physician were clearly contraindicated by the hospital staff and failed to establish acts of negligence by any hospital staff.