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

Donna VENTURA, etc., Appellant, v. BETH ISRAEL MEDICAL CENTER, etc., et al., Respondents.

Decided: September 30, 2002

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Benedict P. Morelli & Associates, P.C., New York, NY, (Martha M. McBrayer and David S. Ratner of counsel), for appellant. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, NY, (Steven C. Mandell of counsel), for respondent Beth Israel Medical Center. Leahey & Johnson, P.C., New York, NY, (Peter James Johnson, Jr., and Steve Martin of counsel), for respondents Highway Imaging Associates and David M. Rosenthal.

In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated August 14, 2001, which granted the motion of the defendant Beth Israel Medical Center, and the separate motion of the defendants Highway Imaging Associates and David M. Rosenthal, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

On the evening of December 8, 1996, the decedent went to Beth Israel Medical Center (hereinafter Beth Israel) complaining of chest pain, dizziness, and shortness of breath.   While in the emergency room, the decedent's wife telephoned her sister-in-law, who was employed in the hospital's EKG Department, and asked her to recommend a cardiologist.   Based on this recommendation, the decedent's wife asked Dr. Mitchell Lipton to treat the decedent, and upon the decedent's admission to the hospital, Dr. Lipton acted as his private attending physician.   Shortly after the decedent's release from the hospital, Dr. Lipton scheduled a thallium stress test to determine whether the decedent's shortness of breath was related to heart or lung disease.   The thallium test was administered at Highway Imaging Associates (hereinafter Highway Imaging), and interpreted by Dr. David M. Rosenthal.   Dr. Rosenthal found that while there was a possibility that the decedent, a heavy smoker, had pulmonary disease, there was no evidence of heart disease.   Following the stress test, the decedent sought no further medical treatment until he suffered a heart attack and died approximately one year later.

The decedent's wife subsequently commenced this action against Beth Israel, Dr. Lipton, Highway Imaging, and Dr. Rosenthal, essentially claiming that they committed malpractice by failing to diagnose and treat the decedent's cardiac disease, which resulted in his premature death one year later.   After depositions of the parties were conducted, Beth Israel moved for summary judgment, contending, among other things, that it could not be held liable for any acts of malpractice allegedly committed by Dr. Lipton because he had been voluntarily selected by the decedent's family to be the decedent's private attending cardiologist.   Highway Imaging and Dr. Rosenthal also moved for summary judgment, relying, in part, upon an expert affidavit which stated that the thallium stress test administered to the decedent was technically excellent and revealed no evidence of heart disease.   The Supreme Court granted summary judgment to the moving defendants, and the plaintiff now appeals.

 Contrary to the plaintiff's contention, the Supreme Court properly awarded summary judgment to Beth Israel.  “As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee” (Woodard v. LaGuardia Hosp., 282 A.D.2d 529, 530, 723 N.Y.S.2d 109;  Padula v. Bucalo, 266 A.D.2d 524, 698 N.Y.S.2d 911;  see also Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823).   Although an exception to this rule is recognized where a patient enters a hospital through its emergency room seeking treatment from the hospital and not a particular physician of the patient's choosing (see Woodard v. LaGuardia Hosp., supra;  Padula v. Bucalo, supra ), in support of its motion for summary judgment, Beth Israel submitted evidence which established that the plaintiff selected Dr. Lipton as the decedent's attending cardiologist based upon the recommendation of her sister-in-law.   In opposition to Beth Israel's motion, the plaintiff failed to come forward with any competent evidence to establish that she and the decedent believed that he was receiving medical care from the hospital in general, rather than from Dr. Lipton, the cardiologist of their choice.   Moreover, the affidavit of the plaintiff's expert was insufficient to raise a triable issue of fact as to whether Dr. Lipton's decision to discharge the decedent without conducting a cardiac catheterization was so contraindicated by normal practice that the hospital staff should have inquired into the correctness of the decision (see Cook v. Reisner, 295 A.D.2d 466, 744 N.Y.S.2d 426;  Filippone v. St. Vincent's Hosp. & Med. Ctr. of NY, 253 A.D.2d 616, 677 N.Y.S.2d 340).   Under these circumstances, Beth Israel cannot be held vicariously liable for Dr. Lipton's alleged negligence (see Culhane v. Schorr, 259 A.D.2d 511, 686 N.Y.S.2d 105).

 Furthermore, the Supreme Court properly granted the motion of Highway Imaging and Dr. Rosenthal.   These defendants made a prima facie showing of their entitlement to summary judgment by submitting evidentiary proof which demonstrated that the thallium stress test was properly conducted, and that Dr. Rosenthal did not depart from good and accepted radiology practice in interpreting the test results.   The conclusory affidavit of the plaintiff's expert, which failed to address the deposition testimony of the defendant physicians relating to the procedures followed in administering the test, and the interpretation of the test results, was insufficient to raise a triable issue of fact as to whether Highway Imaging and Dr. Rosenthal committed malpractice (see Bourgeois v. North Shore Univ. Hosp. at Forest Hills, 290 A.D.2d 525, 737 N.Y.S.2d 101;  Fhima v. Maimonides Med. Ctr., 269 A.D.2d 559, 703 N.Y.S.2d 743;  Kaplan v. Hamilton Med. Assocs., 262 A.D.2d 609, 692 N.Y.S.2d 674).

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