Ralph A. Torrillo, Sr., individually and as executor of the Estate of Josephine A. Torrillo, deceased v Richard C. Cherny, M.D., Hematology-Oncology Associates of Central New York, P.C., and Santo M. DiFino, M.D.
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Attorneys and Parties
Brief Summary
Medical malpractice and wrongful death liability arising from postoperative care, including whether a medical practice, Hematology-Oncology Associates of Central New York, P.C. (HOA), could be held vicariously liable for the alleged malpractice of physician Santo M. DiFino, M.D.
Supreme Court granted summary judgment dismissing the claims against DiFino, but otherwise denied the motion, leaving in place claims against Richard C. Cherny, M.D. and HOA, including the claim that HOA was vicariously liable for DiFino's alleged malpractice.
The Appellate Division modified the order by granting summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it asserted vicarious liability against HOA based on DiFino's alleged malpractice.
The appellate court concluded that Supreme Court should have dismissed the vicarious liability claim against HOA as a matter of law and cited Bieger v Kaleida Health Sys., Inc., 195 AD3d 1473, 1475 [4th Dept 2021]. It rejected defendants' remaining appellate contention for the reasons stated by Supreme Court.
Background
Plaintiff brought a medical malpractice and wrongful death action alleging that the decedent suffered injuries after undergoing surgery. The defendants included Richard C. Cherny, M.D., Hematology-Oncology Associates of Central New York, P.C. (HOA), and Santo M. DiFino, M.D. Defendants and DiFino moved for summary judgment dismissing the complaint.
Lower Court Decision
Supreme Court, Onondaga County, granted the motion insofar as it sought dismissal of the claims against DiFino, but otherwise denied the motion. As a result, the claims against Cherny and HOA remained, including the theory that HOA was vicariously liable for DiFino's alleged malpractice.
Appellate Division Reversal
The Appellate Division unanimously modified the order by granting that part of the motion seeking summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it asserted a vicarious liability claim against HOA based on DiFino's alleged malpractice. As modified, the order was affirmed without costs.
Legal Significance
The decision reinforces that, in a New York medical malpractice case, a professional corporation or medical practice may obtain partial summary judgment eliminating a vicarious liability claim where the record does not support holding the practice responsible for the alleged malpractice of a particular physician.
Although most of Supreme Court's order stood, the appellate court removed the claim that HOA could be held vicariously liable for DiFino's alleged malpractice, narrowing the case to the remaining claims against the other defendants.