The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
This case arises out of brain surgery performed on Samara Meyers, who
was eleven years old at the time. Plaintiffs, Samara and her parents,
allege that a doctor who had no authority to operate on Samara performed
her surgery — a situation that is colloquially described as "ghost
surgery." The defendants are the doctor who is alleged to have told the
Meyers that he alone would be performing the surgery, Dr. Fred Epstein,
and the doctor who in fact performed the surgery, Dr. Ira Richmond
Abbott, III. The parties have consented to this matter being adjudicated
by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
___In the summer of 1995, Samara Meyers, the daughter of plaintiffs Gary
and Patricia Meyers, was diagnosed with a brain tumor. Later that year,
Dr. Alan Gardner evaluated Samara and discussed with the Meyers family
the possibility of removing the tumor and certain risks associated with
that procedure. The Meyers family then sought a second opinion from Dr.
Epstein. Dr. Epstein recommended surgery for resection of the brain tumor
and, on August 21, 1995, Samara was admitted to New York University
Medical Center to undergo this operation.
Prior to the surgery, Patricia Meyers signed two consent forms on
behalf of Samara. One form authorized "such diagnostic procedure and
hospital care and such medical treatment by Dr. Epstein, his assistant or
his designees as is necessary in his judgment." The second form
authorized "Epstein/Abbott and those whom he may designate as associates
or assistants to perform [the operation] upon Samara Meyers."
According to the Meyers, Dr. Epstein told them prior to the surgery
that he would be performing the surgery on Samara and that Dr. Abbott
would be assisting him. See Certification of Patricia Meyers, dated April
25, 2002, at ¶ 2. Patricia Meyers allegedly told Dr. Epstein: "I know
this is a teaching hospital, but I want to make sure that no one is
touching my daughter but you." Transcript of the January 3, 2002,
Deposition of Patricia Meyers at 58. Dr. Epstein allegedly responded: "Of
course I will be the only one. I will be the one performing, I will be
the one operating on her." Id. at 59.
Samara's operation took place on August 22, 1995 and was performed by
Dr. Abbott. Dr. Epstein did not participate in the operation at all.
Moreover, Dr. Abbott does not remember discussing anything with Dr.
Epstein during the course of the operation, nor does he remember if Dr.
Epstein was even present during the operation. See Transcript of the
January 16, 2002, Deposition of Ira Richmond Abbott, M.D. ("Abbott Dep.")
at 74-75. In fact, Dr. Epstein had never performed the type of surgery
involved in Samara' s operation, at least from the period that Dr. Abbott
started working at the hospital. See id. at 44.*fn1 Following the
operation, Dr. Epstein came to Samara's parents in the waiting room, where
he told them the surgery went fine and that Dr. Abbott was going to be
coming up also. Transcript of the January 3, 2002, Deposition of Patricia
Meyers at 86-87.
The Meyers have alleged that the surgery caused Samara to experience
left side paralysis, cognitive impairments, and a loss of left side
peripheral vision in both eyes. Joint Pretrial Order, dated April 9,
2002, at 7. They have abandoned their claim, however, that the operation
was improperly performed.
A. Summary Judgment Standard
A district court may grant summary judgment only if "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 (1986). A genuine issue is one that "may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 250 (1986); McPherson v. Coombe, 174 F.3d at 280. A
material issue is a "dispute over facts that might affect the outcome
of the suit under the governing law." Anderson, 477 U.S. at 248. Thus,
"'[a] reasonably disputed, legally essential issue is both genuine and
material'" and precludes a finding of summary judgment. McPherson, 174
F.3d at 280 (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996)). When determining whether a genuine issue of material fact
exists, courts must resolve all ambiguities and draw all ...