SITA v. LONG ISLAND JEWISH HILLSIDE MEDICAL CENTER (2005)

In an action, inter alia, to recover damages for medical malpractice, the defendant Long Island Jewish-Hillside Medical Center appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Covello, J.), dated March 26, 2004, as, upon reargument, adhered to a prior determination of the same court (Burke, J.), in an order dated April 8, 2003, denying those branches of its motion which were for summary judgment dismissing the fourth, fifth, sixth, ninth, and eleventh causes of action insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, upon reargument, so much of the order dated April 8, 2003, as denied those branches of the motion which were for summary judgment dismissing the fourth, fifth, sixth, ninth, and eleventh causes of action insofar as asserted against the appellant are granted, those causes of action are dismissed, and the action against the remaining defendants is severed.

 Summary judgment should have been granted dismissing the cause of action alleging medical malpractice insofar as asserted against the appellant, the Long Island Jewish-Hillside Medical Center (hereinafter LIJ).   Since the injured plaintiff was treated by his private physician, who was not an employee of LIJ, it cannot be held vicariously liable for his alleged malpractice (see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823;  Orgovan v. Bloom, 7 A.D.3d 770, 776 N.Y.S.2d 879).   Similarly, it was the duty of the injured plaintiff's private physician, and not LIJ, to obtain the plaintiff's informed consent (see Public Health Law § 2805-d;  Fiorentino v. Wenger, 19 N.Y.2d 407, 417, 280 N.Y.S.2d 373, 227 N.E.2d 296).   There is no indication that LIJ knew or should have known that the injured plaintiff's physician was acting without informed consent, or that LIJ had reason to suspect malpractice (see Cirella v. Central Gen. Hosp., 217 A.D.2d 680, 630 N.Y.S.2d 93;  Culkin v. Nassau Hosp. Assn., 143 A.D.2d 973, 533 N.Y.S.2d 588).   Indeed, the pedicle screw system used to treat the injured plaintiff's back condition was considered the standard of care in the medical community (see Sita v. Danek Med., 43 F.Supp.2d 245, 255-56).   Although marketing and promotion of the pedicle screw system was not approved by the Food and Drug Administration (hereinafter the FDA) for treating the injured plaintiff's condition, this does not prevent a physician from using the system in an “off-label” manner (see 21 USC § 396;  Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854;  Sita v. Danek Med., supra at 262).   Furthermore, because the injured plaintiff was not participating in a clinical investigation, FDA regulations did not require LIJ to obtain his informed consent or to disclose the regulatory status of the pedicle screw system (see 21 USC § 360j[g];  21 CFR 50.25).   Because as a matter of law LIJ established that it had no duty to obtain the injured plaintiff's informed consent, and no triable issue of fact was raised by the plaintiffs, upon reargument, summary judgment dismissing that cause of action should have been granted (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

As to the cause of action alleging negligent hiring and supervision (see Bleiler v. Bodnar, 65 N.Y.2d 65, 73, 489 N.Y.S.2d 885, 479 N.E.2d 230), in opposition to LIJ's motion, the plaintiffs failed to identify any negligently hired or supervised employee of LIJ.   Accordingly, summary judgment dismissing that cause of action was also warranted (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also Polanco v. City of New York, 244 A.D.2d 322, 665 N.Y.S.2d 534).

In light of this determination, the punitive damages claim and the plaintiff wife's derivative claim are no longer viable, and the plaintiffs' remaining contention need not be reached.