In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Richmond County (McMahon, J.), dated December 27, 2007, which granted the motion of the defendants St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, and Dorotea DeFrancesco, and the separate motion of the defendants Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn for summary judgment dismissing the complaint insofar as asserted against them, and (2) a judgment of the same court dated February 8, 2008, which, upon the order, is in favor of those defendants and against them dismissing the complaint insofar as asserted against those defendants.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., MARK C. DILLON, ARIEL E. BELEN & L. PRISCILLA HALL, JJ.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn; as so modified, the judgment is affirmed insofar as appealed from, those branches of the motion of the defendants St. Vincent's Medical Center and Lilibeth Rubio-Gonzales which were for summary judgment dismissing the complaint insofar as asserted against them and the separate motion of the defendants Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn for summary judgment dismissing the complaint insofar as asserted against them are denied, the order dated December 27, 2007, is modified accordingly, the complaint is reinstated against those defendants, and the action against the defendant Dorotea DeFrancesco is severed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Dorotea DeFrancesco, payable by the plaintiffs, and one bill of costs is awarded to the plaintiffs, payable by the defendants St. Vincents's Medical Center, Lilibeth Rubio-Gonzales, Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
On November 5, 2001, the plaintiff Barbara Vaccaro (hereinafter Vaccaro) underwent a C4-C5 posterior foraminotomy decompression at the defendant St. Vincent's Medical Center (hereinafter the Hospital). The surgery was performed by the defendant John Sou-Cheng Shiau, M.D. (hereinafter Dr. Shiau), who was assisted by the defendant Lilibeth Rubio-Gonzales, M.D., an anesthesiologist (hereinafter Dr. Rubio-Gonzales), the defendant Dorotea DeFrancesco, a certified physician's assistant, and other members of the Hospital's staff. Also present was the defendant Sharon Osborn, a somatosensory evoked potentials (hereinafter SSEP) technician who was employed by the defendant Neuroscience Associates of N.Y. (hereinafter Neuroscience), and who, at the time of Vaccaro's surgery, was employed by Neuroscience's predecessor, the defendant Healthcare Associates in Medicine, P.C. (hereinafter Healthcare). Immediately after the surgery was performed, Vaccaro was unable to move her upper or lower extremities. She was later diagnosed with a spinal cord contusion, resulting in quadriparesis.
The plaintiffs alleged, inter alia, that had SSEP monitoring been performed, or properly performed, during the surgery, Vaccaro would not have sustained, among other things, a spinal cord contusion. The plaintiffs also alleged that the Hospital negligently permitted Dr. Shiau to perform this cervical spine surgery utilizing the "Met-RX procedure."
The Supreme Court properly awarded summary judgment dismissing the complaint insofar as asserted against DeFrancesco. DeFrancesco demonstrated her prima facie entitlement to judgment as a matter of law by presenting the expert affirmation of a neurosurgeon, who opined that she appropriately followed the orders of Dr. Shiau, Vaccaro's private attending physician, that those orders were not contraindicated by normal practice, and that she did not commit any independent acts of negligence (see Martinez v La Porta, 50 AD3d 976, 977). In opposition, the expert affirmations submitted by the plaintiffs were insufficient to raise a triable issue of fact as to whether DeFrancesco should have known that any order or decision of Dr. Shiau's was "so contraindicated by normal practice that [she] should have inquired into [its] correctness" (Ventura v Beth Israel Med. Ctr., 297 AD2d 801, 803), or that any independent act of negligence on her part proximately caused Vaccaro's injuries.
However, the Supreme Court erred in granting that branch of the Hospital's motion which was for summary judgment dismissing the complaint insofar as asserted against it. Initially, we note that the record contains conflicting evidence as to whether SSEP monitoring was actually performed during the surgery. The hospital record, operative report, and Dr. Rubio-Gonzalez's testimony all support the conclusion that SSEP monitoring was performed throughout the surgery. However, the deposition testimony of Dr. Shiau and Osborn is to the contrary. Dr. Shiau testified that SSEP monitoring was not necessary "in a case like this" and that he neither intended to, nor did, have such monitoring conducted during the surgery, his operative report stating that SSEP monitoring was performed throughout the surgery notwithstanding. Osborn testified that while she attempted to use the SSEP machine made available to her at the Hospital to monitor Vaccaro, attached the electrodes to Vaccaro, and remained in the operating room for about 30 minutes after Vaccaro was anesthetized, when she was unable to obtain a baseline reading for Vaccaro, Dr. Shiau told her to "wrap it up," at which point she left the operating room.
The plaintiffs' anesthesiology expert opined that Vaccaro's surgery required SSEP monitoring and the Hospital had an obligation to ensure that a properly working SSEP monitoring machine was "readily available in the operating room." The plaintiffs' neurosurgery expert concurred. Accordingly, since the Hospital did not demonstrate the absence of any issues of fact as to whether its alleged failure to provide SSEP monitoring was a deviation from the acceptable standard of care, it did not meet its prima facie burden of establishing its ...