Martinez v. Orange Reg'l Med. Ctr.

203 A.D.3d 910

165 N.Y.S.3d 573

Wynelia MARTINEZ, etc., appellant,

v.ORANGE REGIONAL MEDICAL CENTER, et al., respondents, et al., defendants.

2019–07595

Index No. 5621/16

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

Argued—December 17, 2021

March 16, 2022

Kramer, Dillof, Livingston & Moore, New York, NY (Matthew Gaier and Pani Vo of counsel), for appellant.

Thompson–Tinsley Law, PLLC, Cold Spring, NY (Angela Thompson–Tinsley of counsel), for respondent Orange Regional Medical Center.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains, NY (Robert A. Spolzino of counsel), for respondents Sergey Koyfman and ENT and Allergy Associates, LLP.

Koster, Brady & Nagler, New York, NY (Bruce M. Brady and Danielle N. Bennett of counsel), for respondents Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Sandra B. Sciortino, J.), entered May 9, 2019. The judgment, insofar as appealed from, upon an order of the same court dated April 18, 2019, granting the motion of the defendants Sergey Koyfman and ENT and Allergy Associates, LLP, for summary judgment dismissing the complaint insofar as asserted against them, the motion of the defendants Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP, for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the motion of the defendant Orange Regional Medical Center which was for summary judgment dismissing the vicarious liability claims asserted against it based on medical malpractice allegedly committed by the defendant Stephen Solomon, is in favor of the defendants Sergey Koyfman, ENT and Allergy Associates, LLP, Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP, and against the plaintiff dismissing the complaint insofar as asserted against those defendants, and in favor of the defendant Orange Regional Medical Center and against the plaintiff dismissing the vicarious liability claims asserted against that defendant based on medical malpractice allegedly committed by the defendant Stephen Solomon.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motion of the defendants Sergey Koyfman and ENT and Allergy Associates, LLP, for summary judgment dismissing the complaint insofar as asserted against them, the motion of the defendants Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP, for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the motion of the defendant Orange Regional Medical Center which was for summary judgment dismissing the vicarious liability claims asserted against it based on medical malpractice allegedly committed by the defendant Stephen Solomon are denied, the complaint is reinstated insofar as asserted against the defendants Sergey Koyfman, ENT and Allergy Associates, LLP, Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP, the vicarious liability claims asserted against the defendant Orange Regional Medical Center based on medical malpractice allegedly committed by the defendant Stephen Solomon are reinstated, and the order dated April 18, 2019, is modified accordingly.

On May 28, 2015, the plaintiff's decedent (hereinafter the decedent) presented to the defendant Orange Regional Medical Center (hereinafter ORMC) for emergency surgery to remove a polyp on her left vocal cord, which was obstructing approximately 85% of her airway. The defendant Sergey Koyfman determined that the decedent required either fiberoptic intubation or, more likely, an awake tracheostomy in order to secure her airway prior to removing the polyp, and after several unsuccessful attempts to perform a fiberoptic intubation, an awake tracheostomy was performed. At some point during the procedure the decedent lost her airway and, despite attempts to reestablish the airway and ventilate the decedent, she became bradycardic, which resulted in, among other things, a brain edema. As a result, the decedent was transferred to palliative care, where she died nine days later.

In August 2016, the plaintiff, as administrator of the decedent's estate, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death, against, among others, Koyfman, the defendant ENT and Allergy Associates, LLP (hereinafter together the Koyfman defendants), ORMC, and the defendants Stephen Solomon, Orange Anesthesia Services, P.C., and North American Partners in Anesthesia, LLP (hereinafter collectively the Solomon defendants). Following discovery, the Koyfman defendants and the Solomon defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, and ORMC moved, inter alia, for summary judgment dismissing those vicarious liability claims asserted against it which were based on the allegedly negligent acts of Solomon. In an order dated April 18, 2019, the Supreme Court, among other things, granted the separate motions of the Koyfman defendants and the Solomon defendants and that branch of ORMC's motion. On May 9, 2019, a judgment was entered in favor of, among others, ORMC, the Koyfman defendants, and the Solomon defendants, inter alia, dismissing the complaint insofar as asserted against the Koyfman defendants and the Solomon defendants and dismissing the vicarious liability claims asserted against ORMC based on medical malpractice allegedly committed by Solomon. The plaintiff appeals.

" ‘Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation ... was a proximate cause of the...