KLESS v. Hari Subramanian, M.D., and St. Joseph Hospital, Defendants-Respondents. (2005)

In this action commenced by plaintiff to recover damages for injuries allegedly sustained as a result of defendants' medical malpractice, we conclude that Supreme Court erred in granting that part of the motion of defendant St. Joseph Hospital (hospital) for summary judgment dismissing the complaint in its entirety against it. Although the hospital also sought dismissal of “the cross-claims of the co-defendants against the hospital,” the court treated the motion only as one for summary judgment dismissing the complaint against the hospital, and no issue concerning any cross claims against the hospital is before us on this appeal.

 The hospital may be liable in malpractice for the conceded failure of its staff to carry out a physician's order (see Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 264-265, 292 N.Y.S.2d 440, 239 N.E.2d 368, rearg. denied 22 N.Y.2d 973, 295 N.Y.S.2d 1033, 242 N.E.2d 499;  see also Collins v. New York Hosp., 49 N.Y.2d 965, 967, 428 N.Y.S.2d 885, 406 N.E.2d 743, rearg. denied 50 N.Y.2d 929, 431 N.Y.S.2d 1031, 409 N.E.2d 1016;  Beardsley v. Wyoming County Community Hosp., 79 A.D.2d 1110, 435 N.Y.S.2d 862), and we thus conclude that the hospital failed to meet its burden of establishing its entitlement to judgment as a matter of law with respect to its diagnosis and treatment of plaintiff.   Further, the hospital failed to establish as a matter of law the absence of a causal relationship between its alleged malpractice and plaintiff's alleged injuries (see Olivetto v. Salevitz, 8 A.D.3d 645, 646, 779 N.Y.S.2d 248;  Nwabude v. Sisters of Charity Health Care Sys. Corp., 309 A.D.2d 909, 910, 766 N.Y.S.2d 119;  see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In any event, plaintiff raised a triable question of fact on the issue of causation (see Anderson v. Lamaute, 306 A.D.2d 232, 233-234, 761 N.Y.S.2d 87;  Lopez-Maraldo v. Ciccone, 292 A.D.2d 348, 739 N.Y.S.2d 577;  Mineroff v. Silber, 274 A.D.2d 379, 380-381, 710 N.Y.S.2d 623;  Smith v. Mather Mem. Hosp., 268 A.D.2d 518, 701 N.Y.S.2d 663).   We note that there is no challenge to that part of the order dismissing the complaint against the hospital to the extent that the complaint alleges negligent credentialing.   We therefore modify the order accordingly.

 Similarly, we conclude that the court erred in granting the motion of defendant Hari Subramanian, M.D. for summary judgment dismissing the complaint against him, and we thus further modify the order accordingly.   A doctor is under a duty of reasonable care to a patient to ensure that his orders with respect to that patient are carried out (see Pigno v. Bunim, 43 A.D.2d 718, 350 N.Y.S.2d 438, affd. 35 N.Y.2d 841, 362 N.Y.S.2d 865, 321 N.E.2d 785).   Dr. Subramanian did not sustain his initial burden of establishing as a matter of law either his lack of fault or the lack of any causal connection between such fault and plaintiff's injuries (see generally Winegrad, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642), and plaintiff in any event raised triable issues of fact (see Anderson, 306 A.D.2d at 233-234, 761 N.Y.S.2d 87).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendant Hari Subramanian, M.D. and the motion of defendant St. Joseph Hospital in part and reinstating the second and third causes of action except insofar as the third cause of action alleges negligent credentialing and as modified the order is affirmed without costs.

MEMORANDUM: