LAWRENCE v. BROOKLYN HOSPITAL CENTER (2025)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc. #s 246-259, 270 by Def. The Brooklyn Hospital Center

NYSCEF Doc. #s 263-269 by Plaintiff

Upon the foregoing cited papers and after oral argument on September 30, 2025, pursuant to CPLR § 3212, the Motion for Summary Judgment by Defendant The Brooklyn Hospital Center (“TBHC”) is DENIED in part and GRANTED in part.

BACKGROUND

Plaintiff commenced this medical malpractice action on January 11, 2016, alleging Defendants:

• failed to properly diagnose and treat her medical condition;

• failed to obtain informed consent; and

• were negligent in hiring and supervision.1

The claims arise from medical treatment rendered on March 24, 2015, when Plaintiff presented to Dr. Shaikh with symptoms of nausea, vomiting, diarrhea, and abdominal pain.² Believing that Plaintiff was suffering from gastroenteritis, Dr. Shaikh referred Plaintiff to TBHC's emergency department and subsequently admitted her to the Intensive Care Unit (ICU) where she was treated by non-party emergency department doctors Jacob Warman, M.D. and Fairouz Hasselmark, M.D.³

Dr. Shaikh discharged Plaintiff from TBHC on March 27, 2015, with a diagnosis of thyrotoxicosis.⁴ On May 14, 2015, she sought medical treatment at New York Presbyterian Brooklyn Methodist Hospital as a result of diffuse abdominal pain and where she was diagnosed with a ruptured tubo-ovarian abscess and underwent emergency surgery.⁵

Following completion of discovery and the filing of the Note of Issue, Defendant TBHC moved for summary judgment,⁶ Plaintiff opposed,⁷ and TBHC replied to Plaintiff's opposition.⁸

LEGAL STANDARD

Summary judgment is a drastic remedy that should only be granted where there is no genuine issue of material fact. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dep't 2014). The Court's role on such a motion is not to resolve factual disputes or assess credibility, but solely to determine whether triable issues exist. Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

In medical malpractice cases, the defendant bears the initial burden of establishing either that there was no departure from accepted medical practice or that any departure was not the proximate cause of the plaintiff's injury. Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022). If the defendant meets this burden, the plaintiff must submit competent medical evidence to raise a triable issue of fact. Cerrone v. N. Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021). Where the parties submit conflicting expert opinions, summary judgment is inappropriate and should be denied, as such credibility issues must be resolved by a jury. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024).

DISCUSSION

 Medical Malpractice Claims

In support of its motion, Defendant TBHC submitted the expert affirmation of Dr. Gary L. Mucciolo who opined that the medical care provided to Plaintiff conformed with accepted medical standards and was not the proximate cause of her injuries.⁹ In opposition, Plaintiff submitted the expert affirmation of Dr. Lauren Shapiro, who opined that Defendant TBHC's treatment deviated from accepted medical practice and contributed to Plaintiff's injuries.¹⁰

Given the conflicting expert opinions, triable issues of fact exist regarding whether TBHC's treatment of Plaintiff constituted medical malpractice. Summary judgment is therefore inappropriate.¹¹ See Gupta, 224 AD3d at 669.

 Vicarious Liability and Apparent Agency

TBHC argues it cannot be held vicariously liable for the alleged malpractice of Dr. Shaikh, asserting he was Plaintiff's private physician and not their employee. TBHC further contends that Plaintiff selected Dr. Shaikh independently and that it did not represent Dr. Shaikh as its agent.

Generally, where an employee is acting within the scope of their employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training. Saretto v. Panos, 120 AD3d 786, 788 (2d. Dept. 2014). Conversely, where an employee acts outside the scope of employment, an employer may only be held liable for negligent hiring and supervision if “the employer knew or should have known of the employee's propensity for the conduct which caused the injury.” Guarino v. ProHEALTH Care Assc., LLP, 219 AD3d 467, 519 (2d Dept. 2023).

Where medical treatment is provided by a patient's private physician, “a hospital may not be held vicariously liable for the malpractice of a private attending physician, who is not an employee.” Toth v. Bloshinsky, 39 AD3d 848, 850 (2d Dept. 2007). This rule does not apply where (1) hospital employees knowingly follow orders that are ‘so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders; (2) hospital employees commit independent acts of negligence; or (3) the hospital is liable under a theory of ostensible or apparent authority. See Daria v. Benisch, 130 AD3d 777 (2d Dept. 2015); see also Sampson v. Contillo, 55 AD3d 588, 590 (2d Dept. 2008). To establish apparent or ostensible agency, “there must be words or conduct by the principal, communicated to a third party, which gives rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal;” the third party reasonably relied on the appearance of authority; and the third party accepted the agent's services because of the perceived relationship between the agent and the principal, and not in reliance of the agent's skill. Id.

TBHC alleges that Dr. Shaikh is Plaintiff's private physician and it cannot be held vicariously liable for his alleged medical malpractice.¹² TBHC also argues that it cannot be held vicariously liable under the theories of apparent agency or ostensible agency because Plaintiff relied on her own research in selecting Dr. Shaikh and its actions and words did not give rise to the appearance that Dr. Shaikh was acting on behalf of TBHC.¹³ See Sampson, 55 AD3d at 590.

However, Plaintiff has raised triable issues of fact regarding the nature of Dr. Shaikh's relationship with TBHC. Specifically, questions remain as to whether:

1. Dr. Shaikh was acting as an employee or agent of TBHC at the time of Plaintiff's treatment;

2. TBHC's conduct or representations gave rise to the appearance that Dr. Shaikh was acting on its behalf, thereby implicating the doctrine of apparent or ostensible agency;

3. TBHC employees, including non-party Drs. Warman and Hasselmark independently rendered negligent care or followed orders that were clearly contraindicated.14

These issues are material to the question of TBHC's potential liability and must be resolved by a trier of fact.

 Lack of Informed Consent

Defendant TBHC moves to dismiss Plaintiff's cause of action for lack of informed consent, arguing that the treatment at issue did not involve an invasion of Plaintiff's bodily integrity as contemplated by NY Pub. Health L. § 2805-d.¹⁵ Alternatively, TBHC argues that any obligation to obtain informed consent rested with Dr. Shaikh, Plaintiff's private physician.¹⁶ Based on the undisputed material facts, Plaintiff's claim for lack of informed consent cannot be sustained. See Brady v. Westchester Cnty. Healthcare Corp., 78 AD3d 1097, 1099 (2d Dept. 2010); Trabal v. Queens Surgi-Center, 8 AD3d 555, 556 (2d Dept. 2004); Danziger v. Mayer, 236 AD3d 755, 756-760 (2d Dept. 2025).

To establish a cause of action for lack of informed consent, a plaintiff must demonstrate:

(1) the provider failed to disclose alternatives and reasonably foreseeable risks that a reasonable practitioner would have disclosed;

(2) a reasonably prudent patient in the same position would not have undergone the treatment if fully informed; and

(3) the lack of informed consent is a proximate cause of the injury.

Cox v. Herzog, 192 AD3d 757, 758 (2d Dept. 2021).

The undisputed material facts establish that on March 24, 2015, Dr. Shaikh admitted Plaintiff to TBHC's Intensive Care Unit (“ICU”) with a diagnosis of noninfectious Gastroenteritis and Colitis.¹⁷ Plaintiff received Intravenous (“IV”) fluids, was placed on cardiac monitoring, and was prescribed medications including Heparin, Acetaminophen, Methimazole (treats hypothyroidism), Propranolol (treats hypertension, chest pain, and uneven heartbeat).¹⁸ Plaintiff executed a general consent for treatment form and a separate consent for a CT angiogram of her chest.¹⁹ On March 25, 2015, Dr. Shaikh examined Plaintiff's abdomen and found no abnormalities. Plaintiff's condition improved, and she was discharged on March 27, 2015.²⁰

On these facts, Plaintiff failed to establish the elements of a lack of informed consent claim. See e.g., Danziger, 236 AD3d at 756-760 (dismissing plaintiff's cause of action for lack of informed consent where defendants failed to timely diagnose and treat the injured plaintiff's impending stroke). Plaintiff has not shown that a reasonably prudent patient would have declined the treatment if fully informed, nor has she demonstrated that the specific course of treatment, rather than the alleged failure to diagnose, was the proximate cause of Plaintiff's ruptured tubo-ovarian abscess and the subsequent removal of her reproductive organs. See Brady, 78 AD3d at 1099; Trabal, 8 AD3d at 556 (“The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been the proximate cause of the injury.). As the record reveals no triable issues of fact, Plaintiff's lack of informed consent claim must be dismissed. See Stukas, 83 AD3d at 23.

CONCLUSION

Accordingly, TBHC's Motion for Summary Judgement is DENIED in part and GRANTED in part.

This constitutes the Decision and Order of the Court.

FOOTNOTES

1.   NYSCEF Doc. # 249.

2.   NYSCEF Doc. #248, 268.

3.   See id.

4.   See id.

5.   See id.

6.   NYSCEF Doc. #s 246-259.

7.   NYSCEF Doc. #s 263-269.

8.   NYSCEF Doc. # 270.

9.   See NYSCEF Doc. # 258.

10.   See NYSCEF Doc. # 265.

11.   See NYSCEF Doc. # 258 (Defendant's expert affirmation) NYSCEF Doc # 265 (Plaintiff's expert affirmation).

12.   NYSCEF Doc. # 247 at 5-13, 15.

13.   See id. at 10-13.

14.   See e.g., NYSCEF Doc. # 267 at 7-8.

15.   See NYSCEF Doc. # 247 at 14-15.

16.   See id.; see also Doria v. Benisch, 130 AD3d 777, 778 (2d Dept. 2015) (citing Salandy v. Bryk, 55 AD3d 147, 152 (2008)) (finding that, where the provider is a private physician attending to patients in a hospital facility, it is the duty of the physician, not the hospital to obtain the patient's informed consent.).

17.   See NYSCEF Doc. # 248.

18.   See NYSCEF Doc. # 248 5; see also NYSCEF Doc. # 255.

19.   NYSCEF Doc. # 248 6; NYSCEF Doc. # 257 at 108-111.

20.   NYSCEF Doc. # 248 10.

Patria Frias-Colón, J.