The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
This is a medical malpractice action arising out of a heart and lung transplant performed by Dr. Craig Smith, a transplant surgeon at Presbyterian Hospital, on John Anthony Good, Jr. ("John Jr.") on August 12, 1990. The plaintiff, Carmella Good, individually and as Administratrix of the Estate of John Jr., alleges a lack of informed consent. The plaintiff maintains that Dr. Smith failed to advise her that the organs to be transplanted had tested positive for the presence of cytomegalovirus ("CMV"). The plaintiff contends that the virus caused John Jr.'s death.
This action was originally commenced against various defendants including Dr. Smith, the pediatric cardiologist; Dr. Robyn Barst, the pediatric pulmonologist; Dr. Lynne Quittell; John Doe I through John Doe XXX; and the Presbyterian Hospital. Only Dr. Smith and the Presbyterian Hospital remain as defendants in this action. Dr. Smith and the Presbyterian Hospital now move for summary judgment pursuant to Fed. R. Civ. P. 56.
The plaintiff's first claim is that Dr. Smith failed to follow the informed consent procedure of New York Public Health Law § 2805-d(1) which requires that a person providing professional treatment or diagnosis disclose to the patient the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation. The defendants argue that it was not, and is not the standard practice for transplant physicians in the United States to discuss the CMV status of proposed donor organs with patients or their representatives. Therefore, the defendants argue that the plaintiff has not and could not establish a failure to comply with the informed consent procedure under New York law.
Plaintiffs' second claim is that the defendant, Presbyterian Hospital, is vicariously liable for Dr. Smith's alleged failure to provide informed consent to the plaintiff. Presbyterian Hospital argues that the duty of informed consent belongs to the doctor and that it is not vicariously liable for Dr. Smith's actions since he was not a hospital employee.
In March 1990, John Jr. underwent evaluation and treatment at Presbyterian Hospital. On May 29, 1990, a potential donor became available to the Presbyterian's Hospital's transplant team, but the transplant did not proceed because the donor organs were not acceptable for transplant. (Smith Aff. at P 8.) At that time, Dr. Smith discussed the potential benefits and risks of the operation, and the plaintiff signed a consent form. (Smith Aff. at P 7.) The plaintiff, Carmella Good, alleges that the transplant did not proceed because Dr. Smith told her, "they (the lungs) have to be clean, perfect, nothing, no spots, no diseases, no viruses." (Carmella Good Dep. at 286.)
In August 1990, another donor became available. Prior to death, the child donor had received blood transfusions and was subsequently determined to be positive for CMV. The plaintiff maintains that the donor's CMV status was known to Dr. Smith and the other members of the transplant team prior to accepting the organs on behalf of John Jr., who was CMV negative. The doctors had previously provided the plaintiff with a booklet detailing the many risks of a cardiopulmonary transplant, but there is no contention that Dr. Smith advised the plaintiff that the donor for the specific transplant was CMV positive. The plaintiff again signed an informed consent form. (Smith Aff. at P 9.)
It is not disputed that the transplant was successful. It is also undisputed that after the initial period, John Jr.'s condition started to deteriorate. Dr. Smith admits that John Jr. showed signs of allograft rejection, CMV infection, and suffered from barotrauma and lung disease. (Smith Aff. at P 15.) John Jr. eventually died on October 5, 1990. The parties dispute whether CMV played a substantial role in causing John Jr.'s death. It is not disputed that the autopsy findings are consistent with both rejection and infection.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court must resolve all ambiguities against the moving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon mere allegations or denials of the moving party's pleadings. Anderson, 477 U.S. at 248-249. Speculative and conclusory allegations are insufficient ...