Summary Judgment Affirmed


The Appellate Division, Second Department recently affirmed the lower court’s decision granting summary judgment dismissal on behalf of a prominent teaching hospital in the Hudson Valley.  The case involved an alleged failure to properly perform a retrobulbar block during cataract surgery resulting in blindness.  Brendan J. Alt, Esq. drafted the motion for summary judgment.  Daryl Paxson, Esq. drafted the appeal papers and Daniel Ratner, Esq. handled the oral argument at the Appellate Division.


In the decision, the Appellate Division noted the well-established principle that a resident who assists a doctor during a medical procedure, and who does not exercise any independent judgment, cannot be held liable for malpractice so long as the attending’s directions did not so greatly deviate from normal practice that the resident should be liable for failing to intervene.  The court determined that HPM&B made out a prima facie case showing that the resident was entitled to judgment as a matter of law.  HPM&B cited to the attending ophthalmologist’s deposition transcript, which reflected that he had complete control over the patient’s diagnosis, surgical approach, and the surgery.  Although the resident participated in the surgery by performing the retrobulbar block, she did so under the private attending’s direction and close supervision, and therefore, she exercised no independent medical judgment.  In addition, the Appellate Division found that the attending’s instructions did not so greatly deviate from normal practice that the resident should have intervened.  Finally, the Appellate Division declared that the Hospital was not vicariously liable for the alleged malpractice of the private attending physician who was not an employee.