SCHALLERT v. MERCY HOSPITAL OF BUFFALO

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Shirley SCHALLERT and Joseph Schallert, Plaintiffs-Respondents, v. MERCY HOSPITAL OF BUFFALO, Mark S. St. Marie, M.D., and George Bancroft, M.D., Defendants-Appellants.

Decided: March 21, 2001

PRESENT:  GREEN, J.P., WISNER, HURLBUTT and BURNS, JJ. Amy Archer Flaherty, for Mercy Hospital of Buffalo. Margaret K. Hey, Buffalo, for Mark S. St. Marie, M.D. John P. Powers, for George Bancroft, M.D. Harry G. Modeas, Jr., Buffalo, for plaintiffs-respondents.

 Plaintiffs commenced this action to recover damages for injuries sustained by Shirley Schallert (plaintiff) as a result of her fall from an operating table while she was under general anesthesia and in the care of defendants.   Supreme Court properly granted that part of plaintiffs' motion seeking partial summary judgment on liability against defendants Mercy Hospital of Buffalo, the employer of the two operating room nurses, and Mark S. St. Marie, M.D., the surgeon, and properly denied the cross motion of St. Marie for summary judgment dismissing the complaint against him.   As a matter of law, the surgeon and nurses were negligent in failing to secure the unconscious patient adequately in order to prevent her from falling from the operating table.

 We conclude, however, that the court erred in granting that part of plaintiffs' motion seeking partial summary judgment on liability against defendant George Bancroft, M.D., the anesthesiologist, and in denying the cross motion of Bancroft for summary judgment dismissing the complaint against him, and we modify the order accordingly.   Bancroft and his expert averred, and plaintiffs failed to controvert, that Bancroft's role as anesthesiologist was limited to administering anesthesia to plaintiff, monitoring her vital signs and managing her airway;  that Bancroft had no responsibility to secure plaintiff to the operating table and did not in fact participate in placing any such restraints on her;  and that the responsibility for properly positioning and securing the patient belonged solely to the surgeon and nurses.   Bancroft thus established as a matter of law that he breached no duty of care to plaintiff (see generally, Tenuto v. Lederle Labs., 90 N.Y.2d 606, 612, 665 N.Y.S.2d 17, 687 N.E.2d 1300;  De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: