On or about December 1, 2008, the plaintiffs commenced this medical malpractice action against defendants after they each allegedly deviated from good and accepted medical practice in the treatment rendered to the plaintiff/decedent Jeffrey Hague, resulting in his death. The allegations in the complaint arose from treatment Mr. Hague received from defendants surrounding a total hip replacement on October 16, 2006. Issue has been joined and discovery is complete. Defendants Drs. Rothman, Cohen and Reilly, along with University Physicians Group [hereinafter "UPG"], Healthcare Associates in Medicine, P.C., [hereinafter "Healthcare Associates"] and Staten Island University Hospital [hereinafter "SIUH"] are all presently moving for summary judgment seeking to dismiss the complaint alleging that they each did not deviate from accepted medical practice in their respective treatment of the plaintiff/decedent Jeffrey [*2]Hague ^[FN1].

It is noted that plaintiff has voluntarily discontinued the case against Drs. Arthur Rothman, James V. Malpeso and Staten Island Heart. As such, the portion of motion 004 which requests summary judgment for Dr. Rothman is moot.

The relevant and undisputed facts are as follows; on or about August 2006, plaintiff/decedent Jeffrey Hague presented to non-party Dr. Drucker with complaints of right hip pain. His medical history revealed that in 1977 he was diagnosed with a pituitary tumor and after surgery he was required to take steroids (to replace his cortisol) for the remainder of his life. After 30 years of steroid use, Mr. Hague suffered from avascular necrosis of the right hip and a total hip replacement was planned.

Prior to surgery, however, Mr. Hague was sent to defendant Dr. Neil Cohen, an endocrinologist, for surgery clearance considering the plaintiff's steroid use. Dr. Cohen indicated that Mr. Hague should receive "intravenous stress dose steroids (hydrocortisone 100 mg approximately one hour prior to surgery and one dose 6-8 hours after surgery)". Mr. Hague thereafter presented to his primary care physician, non-party Dr. Sanford Mallin, who performed a multitude of tests prior to surgery.

On August 21, 2006, Mr. Hague presented back to Healthcare Associates and saw defendant Dr. John Reilly who also recommended a total hip replacement ^[FN2]. Prior to the surgery Mr. Hague underwent numerous tests for clearance. The surgery was performed on October 16, 2006, at SIUH by defendant Dr. Reilly. The steroids recommended by Dr. Cohen were not administered to the plaintiff either before or after the surgery. In the days following surgery Mr. Hague's condition deteriorated and he ultimately died on December 2, 2006.

With respect to the instant summary judgment motions, it is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a [*3]proximate cause of injury or damage" (Deutsch v Chaglassian, 71 AD3d 718, 719 [2d Dept., 2010]).

I.Dr. Cohen and UPG's Motion for Summary Judgment

Motion 004

The defendant Dr. Cohen/UPG has established their entitlement to summary judgment by presenting expert evidence namely, the affidavit of Dr. Loren Wissner Greene who opined that Dr. Cohen did not depart from good and accepted medical practice in his treatment of the plaintiff (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Dr. Greene opined that defendant Dr. Cohen acted well within accepted medical standards in his treatment of the plaintiff Jeffrey Hague, in determining that steroids should be administered both before and after surgery; in referring him to his primary care physician (rather than a gastroenterologist) prior to surgery and took an appropriate family history.

In opposition, the plaintiff has presented evidence in admissible form, specifically the redacted physicians affidavit where the doctor opined that defendant Dr. Cohen departed from good and accepted medical practice in the treatment he rendered to plaintiff decedent Jeffrey Hague (id.). Specifically, the physician opined that defendant Dr. Cohen failed to act in accordance with accepted medical standards by failing to, inter alia, notice that steroids were not administered to plaintiff in accordance with his prior directives and immediately order their administration. In addition, the expert opined that Dr. Cohen deviated on October 19, 2006, when he saw Mr. Hague postoperatively in a deteriorating condition and failed to order and/or ascertain that Mr. Hague had not received steroids before or after the hip surgery performed by defendant Dr. Reilly. Thus, the medical expert affidavits provided by the parties clearly differ on the alleged deviations by defendant Dr. Cohen and it is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of the defendant Dr. Cohen or UPG is inappropriate.

II.Dr. Reilly and Healthcare Associates Motion for Summary Judgment

Motion 005

Defendant Dr. Reilly/Healthcare Associates have met their burden establishing the treatment rendered to plaintiff Jeffrey Hague was well within the accepted medical practice (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Dr. Reilly provided the expert affirmation of Dr. I. Paul Brief, who opined that Dr. Reilly was within good and accepted medical practice in, inter alia, relying on the surgical clearance by Dr. Mallin, the plaintiff's primary care physician. Further, Dr. Brief opines that Dr. Reilly was not required to have knowledge of whether the steroids recommended by co-defendant Dr. Cohen were administered prior to and after surgery. Dr. Reilly also provided the expert affirmation of Dr. Guy Mintz who opined that the cause of plaintiff's death was not related to any departure of medical practice by any defendant and that, in fact, plaintiff Jeffrey Hague died of heart disease which, given plaintiff/decedents negative stress test, was not something the defendants could have prevented.

In opposition, the plaintiff has raised numerous triable issues of fact (id.). The plaintiff presented the redacted affirmation of a Board Certified Orthopedic Surgeon who opined that Dr. [*4]Reilly did depart from accepted medical practice in failing to, inter alia, administer the steroids or read the chart to ensure the compliance with co-defendant Dr. Cohen's instruction to provide plaintiff with steroids prior to and after the surgery. In addition, the expert also contended that Dr. Reilly deviated by altering the anesthesia from general to spinal which increased the risk of hypotension. It is clear that triable issues of fact exist with respect to whether defendant Dr. Reilly departed from good and accepted medical practice and thus, resolution by a jury is required (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]).

III.Staten Island University Hospital's Motion for Summary Judgment

Motion 006

"Generally, a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee" (Quezada v. O'Reilly-Green, 24 AD3d 744, 746 [2d Dept. 2005]). Nor, can it be held liable "where its employees follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" (Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]; Cerny v. Williams, 32 AD3d 881, 883 [2d Dept. 2006]; Welch v. Scheinfeld, 21 AD3d 802, 807 [1st Dept. 2005]).

Here, defendant SIUH has made a prima facie showing of entitlement to summary judgment by evidencing that the treatment rendered to plaintiff was predominately performed by his private attending physicians and that SIUH's employees did not deviate from the orders of the physicians in a way that ordinary prudence would requires correctness (id.). In opposition, the plaintiff has raised triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Plaintiff's redacted medical affirmations proport that SIUH staff deviated from accepted medical practice in failing to, inter alia, administering the steroids as per Dr. Cohen's directive and failing to administer the appropriate anesthesia and as a result, a jury resolution is necessary (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]).

Accordingly, it is

ORDERED that defendant Neil D. Cohen, M.D. and University Physicians Group, P.C.'s motion [004] for summary judgment is hereby denied, and it is further

ORDERED that defendant John Patrick Reilly, M.D. and Healthcare Associates in Medicine, P.C.'s motion [005] for summary judgment is hereby denied, and it is further

ORDERED that defendant Staten Island University Hospital's motion [006] for summary judgment is hereby denied, and it is hereby

ORDERED that the case proceed immediately to trial.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: July 1, 2011E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court