The defendants Winthrop University Hospital and Winthrop University Hospital Association move, in Motion Sequence No. 1, for summary judgment of liability pursuant to CPLR 3212. The defendants Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. move, in Motion Sequence No. 2, for summary judgment pursuant to CPLR 3212. The plaintiff moves, in Motion Sequence No. 3, to deny the motion for summary judgment by Winthrop University Hospital and Winthrop University Hospital Association seeking to dismiss the complaint and all cross claims by the defendant, or alternatively should summary judgment be granted, the plaintiff moves for an order precluding the defendants James Henry Grendell, M.D., Winthrop Gastroenterology, P.C., Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. from seeking contribution and Article 16 apportionment against the defendants Winthrop University Hospital and Winthrop University Hospital Association and Clifford Katus, M.D. The opposing parties to the motions oppose the motion. The underlying medical malpractice action arises from the alleged aftermath of the plaintiff, a private patient of Dr. Grendell who was admitted to Winthrop University Hospital on September 29, 2004, with a chief complaint of positive fecal occult blood test and a history of a suggestion of a polyp in the proximal sigmoid colon based on a barium enema. The Court has reviewed and considered all of the motions and all of the supporting, opposing and replying papers by [*2]the parties.

The attorney for Winthrop University Hospital and Winthrop University Hospital Association states, in a supporting affirmation dated May 4, 2007, to Motion Sequence No. 1, there are no issues of fact alleging any negligence by Winthrop University Hospital and Winthrop University Hospital Association. The attorney for Winthrop University Hospital and Winthrop University Hospital Association points out the entire procedure was performed by the plaintiff's private physician, Dr. Grendell, and no employees nor staff members of Winthrop University Hospital and Winthrop University Hospital Association deviated from accepted medical practice during the sigmoidoscopy because Dr. Grendell testified, at a deposition on September 27, 2006, he performed the whole procedure himself, and did not have a fellow nor resident participate with him, and also testified the nurse assisting him was under his direction and followed all of his instructions.

The attorney for Winthrop University Hospital and Winthrop University Hospital Association notes the plaintiff was monitored in the recovery room by a nurse immediately after the procedure ended at 1:45 p.m. until approximately 2:30 p.m., on September 29, 2004, and was discharged that same day from the hospital with stable vital signs, ambulating on her own, and pain free. The attorney for Winthrop University Hospital and Winthrop University Hospital Association indicates, by the plaintiff's August 8, 2006 deposition testimony, the only person the plaintiff made any complaints of abdominal pain or discomfort was Dr. Grendell, who asked the plaintiff how the plaintiff felt before the plaintiff was discharged. The plaintiff testified Dr. Grendell told the plaintiff to go home, and take Tylenol.

The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. states, in a supporting affirmation dated May 4, 2007, to Motion Sequence No. 2, the medical care and treatment rendered to the plaintiff by Dr. Katus and Nassau Anesthesia Associates, P.C. was appropriate, and there were no deviations from the standard of care, so there is no factual issue which might preclude summary judgment. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. notes the plaintiff presented to the emergency room at Winthrop University Hospital on October 1, 2004, and remained there until admitted to the hospital on October 2, 2004, where exploratory laparotomy, lysis of adhesions, small bowel resection including repair of a small bowel perforation with sigmoid colostomy and drainage of abdominal pelvic abscess surgery, along with the placement of two drains was performed by Dr. Logan.

The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. also notes, subsequent to the surgery, the plaintiff came under the care of Alain Derzie, M.D.; was readmitted to Winthrop University Hospital from January 3 to January 8, 2005, under Dr. Derzie's care; and during this hospital admission, Dr. Derzie performed a colostomy reversal and partial colostomy. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. points out, in Dr. Derzie's report dated April 14, 2005, the [*3]doctor noted over the last three months, the plaintiff felt well without complaints since the colostomy was reversed, and the plaintiff had normal bowel movements and had no abdominal pain.

The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. states Dr. Grendell testified, following a sigmoidoscopy, patients are evaluated, according to collaboration between the gastroenterology division and the nursing staff, in the recovery room by endoscopy nurses, who have a checklist for post-endoscopy care which helps determine whether there is some problem which requires a further assessment before the patient is discharged. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. asserts Donna Irka, R.N., an endoscopy nurse, testified, in a December 8, 2006 deposition, about insuring the plaintiff's vital signs were stable, assessing the plaintiff's level of consciousness, and performing a pain assessment, and the plaintiff was alert and oriented no later than 2:15 p.m. on September 29, 2004, but possibly earlier, and the plaintiff was in no pain, and at 2:30 p.m. the plaintiff was no longer under the effect of anesthesia. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. also states Dr. Katus, testified, in his December 19, 2006 deposition, during a sigmoidoscopy, he will routinely monitor the patient's EKG, blood pressure, oxygen saturation, and respiratory rate. Dr. Katus, testified his role is to monitor the vital signs, guarantee an open airway and insure good oxygenation, and during the plaintiff's procedure the plaintiff's vital signs were throughout within well normal limits.

The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. states the affidavit dated June 8, 2007, of Mark Abel, M.D., a board certified anesthesiologist sets forth Dr. Abel's opinion that the care rendered to the plaintiff by Dr. Katus and Nassau Anesthesia Associates, P.C. was appropriate and proper, and at no point did the care of the plaintiff by Dr. Katus and Nassau Anesthesia Associates, P.C. deviate from accepted standards of medical practice. Dr. Abel asserts the medical care and treatment of the plaintiff by Dr. Katus and Nassau Anesthesia Associates, P.C. is not related to the injuries alleged on behalf of the plaintiff in this matter, and there is no causal relationship between the care of the plaintiff by Dr. Katus and Nassau Anesthesia Associates, P.C. and the injuries which the plaintiff claims in this matter. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. contends any claim the perforation of the bowel suffered by the plaintiff resulted from improper techniques during the sigmoidoscopy has no merit against Dr. Katus and Nassau Anesthesia Associates, P.C. based upon the medical records and the parties' testimony since Dr. Katus did not play any role in the performance of the sigmoidoscopy, and did not handle any of the instruments used during that procedure. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. avers Dr. Katus' role, during the sigmoidoscopy, was limited to monitoring the plaintiff's cardiac and respiratory functions, both of which were stable and appropriate throughout the sigmoidoscopy and while the plaintiff was in [*4]the recovery room where Dr. Katus played no role in monitoring nor evaluating the plaintiff, but only cardiac and respiratory functioning. The attorney for Clifford Katus, M.D. and Nassau Anesthesia Associates, P.C. asserts, while there may be issue with regard to an alleged complaint of abdominal pain, this pain was never reported to Dr. Katus, and the appropriate person to evaluate that complaint was the attending physician, Dr. Grendell.

The plaintiff's attorney challenges, in a supporting affirmation dated, as served on June 27, 2007, in an affidavit dated June 27, 2007, by Meredith Ippolito, the claims of the defendants Winthrop University Hospital and Winthrop University Hospital Association that the plaintiff never informed any of their nursing staff of abdominal pain during the post-procedure period prior to discharge, but notes these defendants do agree and accept the plaintiff did report "terrible abdominal pain" to Dr. Grendell. The plaintiff's attorney points out, besides the implausibility that the plaintiff would have reported abdominal pain to Dr. Grendell, but not to the nursing staff, the presence of the nursing note time at 2:15 p.m. reflecting "pain location-abdomen" is revealing, as are the entries in the Winthrop University Hospital records that time the commencement of pain, "since the time of the procedure." The plaintiff's attorney asserts the hospital's failure to demonstrate the absence of complaints of abdominal pain in the plaintiff during the post-procedure period serves to highlight the existence of a substantial issue of fact.

The plaintiff's attorney states, besides the conduct of the nursing staff for which the hospital would be vicariously liable, the proof supporting summary judgment is woefully inadequate because it fails to establish a prima facie showing that Dr. Grendell should be entitled to summary judgment. The plaintiff's attorney urges, just as the hospital would be vicariously liable for its nurses, so too it would be liable for its employee physicians. The plaintiff's attorney states Dr. Grendell testified, during his deposition, that he was a salaried employee of Winthrop University Hospital in 2004, and an employee of Winthrop Gastroenterology, P.C. The plaintiff's attorney argues the defendant who seeks CPLR Article 16 relief has the statutory burden, under CPLR 1603, of proving apportionment against another tortfeasor. The plaintiff's attorney avers the plaintiff obtained jurisdiction over the defendants Winthrop University Hospital and Dr. Katus, and the other defendants may not sit on the sidelines and watch the defendants Winthrop University Hospital and Dr. Katus escape any responsibility, and then come forth with evidence at trial to foist responsibility on "empty chairs" because such a result would convert CPLR Article 16 from a shield into an instrument of blatant injustice unsupported by statute or case law.

The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association states, in a reply affirmation dated July 16, 2007, in further support of the defense motion for summary judgment, and in response to the plaintiff's affirmation in opposition, Dr. Grendell, although a drawing a salary from the hospital and Chief of the Gastroenterology Department at Winthrop University Hospital, [*5]is not represented by this defense counsel, and established a relationship with the plaintiff in Dr. Grendell's private office. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association contends Dr. Grendell's positions with the hospital have nothing to do with how Dr. Grendell came to treat the plaintiff. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association points out it is undisputed the plaintiff was referred to Dr. Grendell by the plaintiff's primary care physician in Dr. Grendell's private office. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association argues this circumstance is not a vicarious liability nor ostensible agency situation where the plaintiff came into the emergency room of Winthrop University Hospital as a service patient and was assigned a doctor, but rather the plaintiff came to be treated at Winthrop University Hospital after establishing a relationship with Dr. Grendell as a private consultant. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association avers there is no issue of respondent superior because Dr. Grendell treated the plaintiff, in his capacity as a private attending physician, and the plaintiff believed Dr. Grendell to be the plaintiff's doctor before the plaintiff ever went to Winthrop University Hospital. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association notes there is no evidence regarding Winthrop University Hospital exerting any control over Dr. Grendell in his treatment of the plaintiff, an issue which the plaintiff chose not to explore at Dr. Grendell's deposition, so without the requisite issue of control over Dr. Grendell, the argument Dr. Grendell was a "hospital employee" is nothing but a desperate attempt by the plaintiff to keep the "deep pocket" hospital in the case.

The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association challenges the plaintiff's argument that it is implausible the plaintiff would have made a complaint after the colonoscopy to Dr. Grendell, and not to the nurses. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association points out the plaintiff and her daughter say otherwise. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association notes the plaintiff and her daughter testified the plaintiff made no complaints to anyone other than Dr. Grendell after the procedure and before leaving Winthrop University Hospital. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association maintains the plaintiff's unfounded argument is the plaintiff reported pain to one of the nurses in the recovery room, arguing some, but not all of the nursing notes specifically state, "No complaints of abdominal pain." The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association asserts the plaintiff was monitored by nurses in the recovery from the time the procedure ended at 1:45 p.m. until approximately 2:30 p.m., and the nursing records from nurses, Irka, Katrina Stergakos, and Faye Elliot indicate the plaintiff's vital signs were stable, the plaintiff could ambulate [*6]on her own, and the plaintiff was pain free, so no complaints of pain were made to any nursing staff. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association additionally notes the hospital records document the plaintiff made no complaints to the nurses, and the defendants have provided testimony and affidavits of the nurses who cared for the plaintiff which confirm the plaintiff made no complaints. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association also notes the plaintiff's counsel points to quotes from the plaintiff's subsequent records, when the plaintiff returned to the hospital on October 1, 2004, and told the staff that she had abdominal pain since the procedure that worsened over time, but that may or may not be true, but it does not matter for the purposes of the defense motion because no one else can know if the plaintiff had abdominal pain since the procedure. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association insists the last person to assess the patient prior to the plaintiff's discharge was her private physician, Dr. Grendell, who would have been the person to decide whether the plaintiff was ready for discharge. The attorney for the defendants Winthrop University Hospital and Winthrop University Hospital Association asseverates there is no issue of fact for the jury to consider with regard to the defendants Winthrop University Hospital and Winthrop University Hospital Association's liability, so dismissal of the complaint as to these defendants is warranted and necessary.

It is well settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d 316, 476 NE2d 642)

Summary judgment is a drastic remedy and should not be granted when there is doubt as to the existence of a material triable issue of fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 231, 413 NYS2d 141, 385 NE2d 1068). On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party and any evidence of the movant which favors the opposing party (Weiss v. Garfield, 21 AD2d 156, 158, 249 NYS2d 458)

To recover damages for medical malpractice, a plaintiff must establish that the defendant deviated or departed from accepted medical practice and that [*7]such deviation or departure proximately caused injury or damage (see, Holbrook v United Hosp. Med. Ctr., 248 AD2d 358; Cahill v County of Westchester, 226 AD2d 571; Bloom v City of New York, 202 AD2d 465)

Although a hospital or other medical facility is liable for the negligence or malpractice of its employees (Bing v Thunig, 2 NY2d 656), that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient himself (Fiorentino v Winger, 19 NY2d 407, 414; see, Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 683), unless the hospital knows that the patient is unaware of the dangers and novelty of the medical procedure proposed to be performed (Fiorentino v Winger, 19 NY2d, at p 417, supra ; see, Ann., 12 ALR4th 57). Nor is affiliation of a doctor with a hospital or other medical facility, not amounting to employment, alone sufficient to impute the doctor's negligent conduct to the hospital or facility (see, Ruane v Niagara Falls Mem. Med. Center, 60 NY2d 908; McDermott v Torre, 56 NY2d 399)

As a general rule, a hospital cannot be held vicariously liable for the malpractice of a treating physician who is not an employee of the hospital (Raschel v. Rish, 69 NY2d 694, 697, 512 NYS2d 22, 504 NE2d 389; Hill v. St. Clare's Hosp., 67 NY2d 72, 79, 499 NYS2d 904, 490 NE2d 823). A hospital can be held vicariously liable, however, for the acts of independent physicians if the patient enters the hospital through the emergency room seeking treatment from the hospital, not from a particular physician (Mduba v. Benedictine Hosp., 52 AD2d 450, 453, 384 NYS2d 527). Such a factual situation may present a question of fact whether the patient could have reasonably believed that the treating physician was provided by the hospital or otherwise acting on the hospital's behalf (see, Casucci v. Kenmore Mercy Hosp., 144 AD2d 910, 534 NYS2d 606)

Dr. Grendell was the plaintiff's private physician for several months prior to the colonoscopy on September 29, 2004. The plaintiff was referred to Dr. Grendell by the plaintiff's primary care physician for evaluation of fecal blood. Dr. Grendell's office scheduled the sigmoidoscopy procedure at Winthrop University Hospital. Dr. Grendell testified he performed this colonoscopy himself, and did not have the assistance of a resident or fellow from Winthrop University Hospital. However, this Court concludes [*8]there is sufficient evidence to warrant submission of the issue of the Hospital's vicarious liability for the alleged medical malpractice of Dr. Grendell to a trier of fact (see, Augeri v. Massoff, 134 AD2d 308, 309, 520 NYS2d 787). "In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all attendant circumstances ... to determine whether the patient could properly have believed that the physician was provided by the hospital'" [Augeri v. Massoff, 134 AD2d 308, 520 NYS2d 787] (Contu v. Albert, 18 AD3d 692, 693, 795 NYS2d 740 [2d Dept.,2005]). "Resolution of issues of credibility of both expert and lay witnesses and the accuracy of their testimony are matters within the province of the jury [see, Miller v. Long Is. Light. Co., 166 AD2d 564, 560 NYS2d 847]" (Halkias v. Otolaryngology-Facial Plastic Surgery Associates, P.C., et al., 282 AD2d 650, 651, 724 NYS2d 432 [2d Dept.,2001]). But, the Court finds there is insufficient evidence to warrant submission of the issue of Dr. Katus and the Nassau Anesthesia Associates, P.C. to a trier of fact. Dr. Katus and the Nassau Anesthesia Associates, P.C. made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case regarding these two defendants. The plaintiff has not provided any evidence Dr. Katus and the Nassau Anesthesia Associates, P.C. deviated or departed from accepted medical practice and that such deviation or departure proximately caused injury or damage.

Accordingly, Motion Sequence No. 1 and Motion Sequence No. 3 are denied, and Motion Sequence No. 2 is granted.

So ordered.

Dated: September 26, 2007

E N T E R:

______________________________

J. S. C.