The following numbered papers were read upon this motion:Notice of Motion/Order to Show Cause 52-63Answering Papers 64-65Reply 67Briefs: Plaintiff’s/Petitioner’sDefendant’s/Respondent’sDecision/Order Defendant James L. Marzec, M.D. moves this Court for an Order dismissing the medical malpractice complaint against him in its entirety, and with prejudice, pursuant to CPLR §3212. Plaintiffs oppose the requested relief.Co-defendants, Nicholas Panza, a physician assistant, Steven A. Simonsen, M.D., and South Shore Orthopaedic Associates, P.C. (South Shore) have not submitted any opposition to the instant motion, nor did they take any position at oral argument of this motion held on March 12, 2019. In their answers, co-defendants Panza, Simonsen and South Shore do not make any cross-claims against Marzec.The infant plaintiff in this action fell off his bicycle in June 2015 and broke his left arm/elbow. The infant plaintiff was five years old when he fell and injured himself. The date of the alleged medical malpractice is July 1, 2015.Initially when he fell off his bicycle, the infant plaintiff was treated in the emergency department of Good Samaritan Hospital where the infant plaintiff’s mother, Jeannette Hatcher, was informed by medical personnel that her son’s arm was broken. Hatcher was provided a list of orthopedic providers by the hospital, with instruction that she should bring the infant plaintiff to an orthopedist “right away.” The hospital did not place a cast on the infant plaintiff but released him with his arm in a sling. Jeannette Hatcher called South Shore upon leaving the hospital and made an appointment for the infant plaintiff to be seen at South Shore the next day.It is undisputed that Hatcher and her son presented themselves to South Shore on July 1, 2015, and that the infant plaintiff was examined and treated by Nicholas Panza, a physician assistant employed by South Shore. X-rays were taken at South Shore and a cast was placed on the infant plaintiff’s left arm. In essence, it is alleged that the casting of the infant plaintiff’s arm was improperly performed, resulting in the arm healing in an undesirable position and causing lack of full flexion, significant decrease in motion, a mal-union of the left elbow, limitations in the infant plaintiff’s daily activities, and cosmetic deformity, among other injuries listed in the Bill of Particulars.Defendant Dr. Marzec contends that he is entitled to summary judgment dismissal of the complaint because he did not treat the infant plaintiff, nor did he oversee Panza’s treatment of the infant plaintiff; accordingly, no physician-patient relationship was established and Marzec does not owe a legal duty to the infant plaintiff.The Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361[1974]). The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Id.) “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff’s (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).“It is well established that before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to plaintiff (citation omitted). In the absence of duty, there can be no breach of duty and without a breach there is no liability” (Purdy v. Public Administrator of the County of Westchester, 127 AD2d 285, 288 [2d Dept 1987]). Moreover, the determination of whether a defendant owed a duty to the plaintiff is a question of law (Id.; see also Megally v. Laporta, 253 AD2d 35, 40-41 [2d Dept 1998]).Specifically, as relates to medical malpractice claims, “it is generally recognized that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship” (Megally, supra at 40; White v. Southside Hospital, 281 AD2d 474 [2d Dept 2001]; Zimmerly v. Good Samaritan Hospital, 261 AD2d 614 [2d Dept 1999]).10 NYCRR §94.2 (f) imposes upon a physician medical responsibility for medical services performed by a licensed physician assistant whom such physician supervises or employs.1 New York’s Business Corporation Law §1501(a) also provides that “[e]ach shareholder, employee or agent of a professional service corporation…shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation.”Here, it is undisputed that Nicholas Panza was employed by South Side, not by Dr. Marzec personally. It is further established by the submitted evidence that Dr. Marzec did not supervise or control Mr. Panza during Panza’s treatment of the infant plaintiff; rather, Dr. Simonsen reviewed the infant plaintiff’s chart and signed off on that chart following treatment of the infant plaintiff by Panza.In support of his motion, Dr. Marzec submits, inter alia, the pleadings, his own deposition testimony and affidavit, the deposition testimony of Ms. Hatcher and Dr. Simonsen, as well as the infant plaintiff’s medical records from South Shore.Plaintiff was seen only once at South Shore, on July 1, 2015. South Shore is a professional corporation that is co-owned in equal shares by Drs. Marzec and Simonsen. Simonsen and Panza each testified that they were employed by South Shore.On July 1, 2015, the infant plaintiff was examined and treated by Nicholas Panza. It is further established that July 1, 2015 was a Wednesday. Dr. Marzec testified that, during July 2015, he worked at South Shore’s offices on Mondays and Tuesdays. Dr. Marzec performed surgeries outside of the South Shore facility on Wednesdays and Fridays. Accordingly, Dr. Marzec stated that he would not have been present at South Shore on the day that the infant plaintiff was treated. Usually, Dr. Simonsen was present at South Shore on Wednesdays and Thursdays.Dr. Marzec further testified that he never saw the infant plaintiff and never treated him. Also, Dr. Marzec stated that he was never called by anyone about the infant plaintiff, and the first time that he heard about the infant plaintiff was “[w]hen we were sued.”Dr. Marzec’s affidavit confirms his deposition testimony that he was not physically present at South Shore on July 1, 2015, and that he never participated in the treatment of the infant plaintiff in any capacity, including the fact that he was never contacted by telephone regarding the infant plaintiff’s care. He also states that Dr. Simonsen was “on duty” on July 1, 2015.Dr. Simonsen’s testimony supports Dr. Marzec’s sworn statements. Dr. Simonsen testified that, as far as he knew, Mr. Panza did not consult with Dr. Marzec regarding the treatment of the infant plaintiff, nor did Panza consult with Simonsen. Although Dr. Simonsen did not remember if he himself was in the office that day, he acknowledged that his signature appears on the infant plaintiff’s chart, although he testified that he could have signed off on the chart on a later date. Dr. Simonsen also identified Mr. Panza’s signature on another page of the infant plaintiff’s chart; however, there is no evidence in the chart, or elsewhere, that Dr. Marzec was consulted on July 1, 2015, signed the chart or any paperwork, or supervised Mr. Panza, concerning the infant plaintiff’s treatment at South Shore.Jeannette Hatcher’s deposition testimony does not contradict Dr. Marzec’s position that he was not present on July 1, 2015 and did not treat the infant plaintiff.This matter is similar to the factual circumstances presented in several other cases where summary judgment was granted in favor of the physician. In Zimmerly, supra, summary judgment was granted to the physician who was on vacation on the day that the plaintiff was admitted to the emergency room of a hospital. In Latiff v. Wyckoff Heights Hospital (144 AD2d 650 [2d Dept 1988]), the director of pediatrics submitted an affidavit in which he averred that he had no recollection of ever treating or examining the plaintiff, and that his review of the hospital records revealed that he never made any entries on the plaintiff’s chart, entitling him to summary judgment dismissal of the complaint. Finally, in Hanrahan v. Good Samaritan Hospital Medical Center (2013 N.Y. Slip Op 33418 [U]), Dr. Francfort established his entitlement to summary judgment by demonstrating that no physician-patient relationship existed because he was not on call, had no contact with the decedent, did not see any records relating to the case, did not author any notes, and did not converse with anyone about the care and treatment of the decedent.Based upon the foregoing, which includes the facts that Dr. Marzec was not present at South Shore on July 1, 2015, did not make any notations in the infant plaintiff’s chart, did not sign off on the chart, was not consulted by telephone about the infant plaintiff’s care and treatment, and that there are no notations in the chart referring to Dr. Marzec, this Court determines that there was no physician-patient relationship established between Dr. Marzec and the infant plaintiff on July 1, 2015. Accordingly, Dr. Marzec has established his prima facie entitlement to summary judgment as a matter of law.In opposition to the instant motion, plaintiff submits the affirmation of counsel and the deposition testimony of Nicholas Panza.Mr. Panza’s testimony does not raise a triable issue of fact sufficient to defeat Dr. Marzec’s motion. Mr. Panza confirmed that he is employed by South Shore and that Dr. Simonsen signed the infant plaintiff’s chart. Panza also acknowledged that he treated the plaintiff without consulting with any physician, and that he also signed one of the forms contained in plaintiff’s chart.Plaintiff’s reliance upon Marchisotto v. Williams (11 Misc3d 1089 [A] [Sup Ct Kings County 2006]), both in the opposition papers and at oral argument, is misplaced because that case is distinguishable from the facts presented here. In that case, the physician testified that he was at the operating room table with the physician assistant who eventually harvested the patient’s radial artery, discussed how he wanted things done, determined how to proceed during the surgery, and made decisions during the operation, including to permit the physician assistant to harvest the vessel during the coronary artery bypass surgery, rather than to have the vessel harvested first, when the physician could have monitored the assistant’s performance of the harvesting procedure.Also cited by plaintiff for the general proposition that physicians can be held vicariously liable for the negligent acts of those whom they supervise, are Shajan v. South Nassau Communities Hospital, (99 AD3d 786 [2d Dept 2012]) and Ruggiero v. Miles, (125 AD3d 1216 [3d Dept 2015]). While this Court agrees with the general proposition for which these cases stand, the facts in those cases are also distinguishable from the case at bar and they do not serve to defeat Dr. Marzec’s motion. In Shajan, the physician not only was assigned to supervise the attending physician assistant, but she countersigned the patient’s chart.In Ruggiero, the physician was the sole shareholder in the practice and he had entered into a written practice agreement with the physician assistant whereby any disputes arising regarding matters of diagnosis or treatment between them would be resolved in accordance with the physician’s opinion. That agreement amply demonstrated to the Ruggiero court that the physician assistant was under the physician’s direct supervision and control. There is no such evidence in this matter.Since the plaintiff has failed to raise a triable issue of fact, defendant James L. Marzec, M.D.’s summary judgment motion is granted, and the complaint as alleged against Dr. Marzec is dismissed in its entirety.The foregoing constitutes the Decision and Order of this Court.Dated: April 29, 2019Riverhead, NY
