PADILLA v. Mount Sinai West, Defendant–Respondent–Appellant. (2023)

Order, Supreme Court, New York County (John J. Kelley, J.), entered May 6, 2022, which, to the extent appealed from, granted defendants Arzu Buyuk, M.D. and Mount Sinai West's (MSW) motion for summary judgment dismissing the complaint against Dr. Buyuk and the vicarious liability claims against MSW premised on Dr. Buyuk's conduct, and denied the motion as to any vicarious liability claims against MSW premised on the conduct of defendant Daniel Labow, M.D., unanimously modified, on the law, to grant the motion for summary judgment dismissing the complaint against MSW, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this medical malpractice action seeking to recover damages for the alleged unnecessary surgery, performed by co-defendant Daniel Labow, M.D., of removing plaintiff's pancreas.  Plaintiff also sues defendant Dr. Buyuk, M.D. for submitting a pre-surgery, pathology report that allegedly contributed to Dr. Labow's decision to conduct the pancreatic surgery.

The motion court correctly found that any error in the pathology report prepared by Dr. Buyuk concerning the number of cells collected in the fine needle aspiration, to the extent there was an error, was not a proximate cause of any injuries to plaintiff (see Foster–Sturrup v. Long, 95 A.D.3d 726, 727–728, 945 N.Y.S.2d 246 [1st Dept. 2012];  Dallas–Stephenson v. Waisman, 39 A.D.3d 303, 306–307, 833 N.Y.S.2d 89 [1st Dept. 2007]).  The surgeon who made the decision to operate was fully aware of plaintiff's clinical picture and knew that the pathologist had determined the cells’ morphology as normal and concluded that the sample was atypical but not malignant or even suspicious for malignancy.  Plaintiff's expert's assertion that the surgeon's decision was based on the report is incorrect, as the surgeon testified that while he reviewed the report prior to deciding to operate, no single item informed his choice.  The surgeon further testified that it was plaintiff's strong family history, blood testing, CT scans, and history of pancreatitis and diabetes, in conjunction with the virulent nature of pancreatic cancer generally, that informed his choice.

The court, however, should not have denied MSW summary judgment upon a sua sponte finding that defendant Dr. Labow was its employee.  There is no evidence that Dr. Labow, who admitted and testified to employment by defendant Mount Sinai Hospital, was employed by MSW at the time of plaintiff's treatment (see Pratt v. Haber, 105 A.D.3d 429, 429, 963 N.Y.S.2d 32 [1st Dept. 2013];  see also Sarivola v. Brookdale Hosp. & Med. Ctr., 204 A.D.2d 245, 245–246, 612 N.Y.S.2d 151 [1st Dept. 1994], lv denied 85 N.Y.2d 805, 626 N.Y.S.2d 756, 650 N.E.2d 415 [1995]).  Plaintiff never pleaded or argued in opposition to MSW's motion any theory of actual or apparent agency, nor is there any evidence in support of such a claim.