VAZQUEZ v. BETH ABRAHAM HEALTH SERVICES (2019)

Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about August 24, 2018, which granted third-party defendant Ross Friedman, M.D.'s motion for summary judgment dismissing the third-party complaint as against him and granted third-party defendant Regional Physicians Services d/b/a Matrix Medical Network's (Matrix) motion for summary judgment to the extent of dismissing the third-party claims for common-law indemnification and contribution as against it, unanimously reversed, on the law, without costs, and the motions denied.

Dr. Friedman failed to make a prima facie showing that he did not commit medical malpractice, because his expert's affidavit was based on a disputed issue of fact (see Carey v. St. Barnabas Hosp., 162 A.D.3d 435, 75 N.Y.S.3d 36 [1st Dept. 2018] ).  The expert asserted that, although Nurse Hughes had noted in the medical chart that the patient was momentarily unresponsive upon returning from physical therapy, Dr. Friedman had never been so informed, and that Dr. Friedman also did not know that the patient had been given oxygen after physical therapy.  The expert opined that Dr. Friedman reacted timely and appropriately.

However, Nurse Hughes testified that she called Dr. Friedman at around noon, i.e., shortly after giving the unresponsive patient oxygen, and informed him of this.  Dr. Friedman testified that he did not recall receiving a phone call advising him that decedent was dizzy and was not responsive.  Dr. Friedman stated that has he received a call that the patient was unresponsive, even momentarily, he would have had the patient immediately transferred to the hospital.  Accordingly, the third-party action should not have been dismissed as to Dr. Friedman.

Matrix failed to make a prima facie showing that it is not liable for Dr. Friedman's alleged malpractice, because it did not establish that Dr. Friedman was an independent contractor, rather than an employee (see Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297, 707 N.Y.S.2d 64 [1st Dept. 2000];  Marino v. Vega, 12 A.D.3d 329, 786 N.Y.S.2d 17 [1st Dept. 2004] ).  The record shows both that Dr. Friedman reported to defendant/third-party plaintiff Beth Abraham Health Services's medical director and that Matrix paid Dr. Friedman and was responsible for his employment benefits.  Moreover, Matrix did not submit its contract with Dr. Friedman, a key piece of evidence in determining Dr. Friedman's status as an employee or an independent contractor (see Felter v. Mercy Community Hosp. of Port Jervis, 244 A.D.2d 385, 386, 664 N.Y.S.2d 321 [2d Dept. 1997] ).

We have considered Dr. Friedman's and Matrix's remaining arguments and find them unavailing.