---_ TRIAL/IAS, PART 13 NASSAU COUNTY RAMSAY TAUHERT and MARY TAUHERT, Plaintiffs, Defendants.

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1 SHORT FORM ORDER Present: SUPREME COURT HON. -JOSEPH A. DE ---_ TRIAL/IAS, PART 13 NASSAU COUNTY RAMSAY TAUHERT and MARY TAUHERT, -against- Plaintiffs, SHIRLEY R. ANDERSEN, M.D., LAWRENCE Y. ONG, M.D., NORTH SHORE UNIVERSITY HOSPITAL, NORTH SHORE HEALTH SYSTEM MEDICAL FACULTY GROUP PRACTICE, INC. and NORTH SHORE HEALTH SYSTEMS, INC., Defendants. - STATE OF NEW YORK MAR0 Justice MOTION DATE: October 6, 2000 INDEX No. 4787/98 SEQUENCE No. 5, _--_ The following papers read on this motion: Notice of Motion and Supporting Papers (Defendants Ong & North Shore) Notice of Motion and Supporting Papers (Defendant Anderson) Memorandum of Law (Defendant Andersen) Memorandum of Law (Lawrence Y. Ong, M.D.., North Shore University Hospital, North Shore Health System Medical Faculty Group Practice, Inc. and North Shore Health Systems, Inc. Affirmation in Opposition (Plaintiffs) Reply Affidavit

2 Motions by (1) the defendants Lawrence Y. Ong, M.D., andnorth Shore University Hospital, North Shore Health System Medical Faculty Group Practice, Inc., and North Shore Health Systems, Inc (the North Shore defendants); and (2) defendant Shirely R. Andersen, for summary judgment dismissing the complaint pursuant to CPLR The plaintiffs commenced the within medical malpractice action alleging, inter alia, that the defendants departed from good and accepted medical practice by failing to administer prophylactic antibiotics prior to the performance of a cardiac catheterization and angiography at North Shore University Hospital in January of 1996 (Cmplt ; BOP I). The complaint further alleges that the defendants failed to inform the injured plaintiff, Ramsey Tauhert, of the risks,associated with, inter alia, undergoing the procedure without the use of prophylactic antibiotics (Cmplt., 28-33)(Publjc Health Law ' 2805-d[ll). The material facts are essentially undisputed. In 1981, Tauhert underwent a total replacement of the left hip; additional corrective hip surgery was performed in 1986 (Pltffs' Opp Aff, at 8-9). In August of 1995, Tauhert began experiencing heaviness in his chest after engaging in physical activity and consulted with codefendant Shirley Andersen, M.D., his primary physician at the time (Tauthert Dep. at 87; Opp Aff., at 10). Upon completion of her examination, Dr. Andersen's initial impression was that Tauhert may have been suffering from arteriolosclerotic heart disease and 2

3 angina pectoris (Andersen Dep. at 25-26; Robbins. MD, Aff., at m 4). In light of the foregoing diagnosis, Dr. Andersen referred Tauhert for a persantine stress test, which produced an abnormal result. Upon review of the abnormal test result, Dr. Andersen referred Tauhert to codefendant Lawrence Y. Ong, Director of Interventional Cardiology at North Shore University Hospital, who performed the cardiac catheterization and angiography procedure. The test results revealed that Tauhert was afflicted with a serious heart condition for which coronary bypass surgery was recommended and ultimately performed in February of Shortly after the catheterization procedure, however, Tauhert developed a blood-borne staph aureus infection, which settled in his prosthetic hip, requiring additional surgeries and hip replacements, allegedly leaving Tauhert with severe, disabling injuries (Cmplt at 23-25; 137; BOP at 3, 9[a]; Opp Aff., mm 10-18). In February of 1998, the plaintiffs commenced the within action. By the instant notices of motion, the North Shore defendants, Dr. Ong and defendant Shirley R. Andersen. M.D., move for summary judgment, submitting, inter alia, the expert affidavit of Dr. Robert Kramer, who offers his opinion that Dr. Ong's conduct was in conformity with good and accepted medical practice. More specifically, Kramer asserts that since the subject procedure was performed in North Shore's coronary catheterization laboratory -- a sterile, aseptic environment -- prophylactic antibiotic treatment 3

4 was unnecessary (Kramer Aff., at 8). Moreover, and according to Kramer: (1) the risk of blood-borne infection.in such a sterile environment was so low as to be unquantifiable, obviating any need to disclose the risk of such an occurrence; (2) the rapidity with which the infection arose establishes that it predated the catheterization procedure; and (3) the American Heart Association guidelines do not recommend the use of prophylactic 'antibiotics under the circumstances presented (Kramer Aff., at 8-9). The plaintiffs' opposing submissions, however, include the medical affidavit of their own expert who opines, inter alia, that it is a well accepted medical fact that patients with prosthetic hips are highly susceptible to infection; that the occurrence of the infection shortly after the procedure was consistent with its development when the procedure was conducted; that within a reasonable degree of medical certainty, the failure to administer prophylactic antibiotics was a substantial factor in precipitating the onset of the infection; and that Dr. Ong therefore was negligent in failing,to prescribe prophylactic antibiotics prior to the subject catheterization procedure (Aff. at motion should be denied )..The Although Dr. Ong and North Shore Hospital have submitted an expert medical affidavit, summary judgment is a drastic remedy which will only be granted,if there are no triable issues of fact presented (Andre v Pomerov, 35 NY2d 361, 364; Gniewek v Consolidated Ed. Co., 271 AD2d 643). Issue finding, not issue determination, is the key to summary judgment (Kruop v Aetna Life, 4

5 103 AD2d 252), and the court should refrain from resolving issues of credibility (Caoelin Assoc. v Globe Mfq. Core., 34 NY2d 338, 341). Here, the parties have submitted materially conflicting medical opinions regarding the propriety of prophylactic antibiotic treatment. Under these circumstances, triable issues of fact have been raised with respect to the plaintiffs' allegations that Dr. Ong's treatment was contrary to good and accepted medical practice (Baez v Lockridse, 259 AD2d 573). That branch of the motion which seeks dismissal of the complaint insofar as interposed against codefendants North Shore Health Medical Faculty Group Practice, Inc. and North Shore Health Systems, is also denied. Although counsel asserts that the foregoing codefendants are not professional service providers but are merely billing entities '(Baker Aff., at 2), the only evidence proffered in support of this claim is a conclusory assertion, made upon information and belief, by an attorney lacking personal knowledge of the facts (Baker Aff., at 2) 1. The motion by Dr. Ong and the North Shore defendants is denied. A.different conclusion, however, is warranted with respect to the plaintiffs' claims against codefendant Andersen; Tauhert's referring physician. In general, "the mere referral of a patient by one physician to another, without more, does not render the referring doctor vicariously liable for the negligence of the treating physician" (Datiz v Shoob, 71 NY2d 867, 868) or require the referring 5

6 physician to obtain informed consent to treatment rendered by a second physician" (see, Nisenholtz v Mount Sinai Hoso., 126 Misc2d 658, , affd, 115 AD2d 1022 see also, Graddv v New York Medical Collese, 19 AD2d 426, ; Kashkin v Mount Sinai Medical Center, 142 Misc2d 863, cf. Harrinqton v Neurolosical Inst. of Colum. Presbvt. Med Ctr,, 254 AD2d 129, 130; Soinosa v Weinstein, 168 AD2d 32, 38, 39). Further, "[f]or liability to arise, the referring physician must do more than retain 'a degree of participation' but rather, "should be held liable only when that physician has ordered a procedure or actually participates in the treatment or procedure" (Nisenholtz v Mount Sinai Hoso., supra, at 664; see Arshanskv v Royal Concourse Co., 28 AD2d 986, 987; Kashkin v Medical Center, supra, at 864-5; 76 NY Jur at 97). 2d, Malpractice, 87 A review of the materials submitted on the motion, including the movant's expert medical affidavit, reveals that Dr. Andersen neither participated in the catheterization procedure, nor formally ordered it within the meaning of the above-cited case law (Nisenholtz v Mount Sinai Hoso., supra, at 663-4). Specifically, Dr. Andersen's contemporaneously authored records indicate that the referral was made to defendant Ong, an expert in invasive cardiology, to' permit him to assess the "advisability" of performing the angiography procedure (Andersen Mot. Exh., "E")., Similarly, Andersen's deposition testimony was to the effect that she sent Tauhert to Dr. Ong "for a consultation to determine whether [an] angiography was the appropriate thing for 6

7 him to have done" (Andersen Dep. at 38,'42). This conclusion is further buttressed by the testimony of Dr. Ong, who indicated that he was responsible for Tauhert's care subsequent to the referral (Ong Dep., at 22) and was the physician who bore responsibility for prescribing any medication required in conjunction with the specialized procedure under consideration (Ong Dep., 35-37). It also bears noting that Tauhert met with Ong on two.separate occasions prior to the actual performance of the procedure, during which a medical history was taken and physical examinations performed (Andersen Mot. Exh., F" at 17, 25), facts which support the conclusion that Dr. Ong -- based upon the independent consultations he conducted -- was the physician ultimately responsible for ordering the procedure, together with any special preparations incident thereto. Contrary to the plaintiffs' assertions, the fact that Dr. Andersen personally called Dr. Ong's office to schedule the appointment, due to the urgency of Tauhert's heart condition (Andersen Dep. at 39), does not raise a triable issue with respect to Andersen's alleged participation in the disputed procedure (Nisenholtz v Mount Sinai Hoso., supra, at 664). Lastly, the plaintiffs' reliance upon Kashkin v Medical Center, supra, is misplaced. In Kashkin, the court found that the referring physician had already made the decision to have the subject test performed prior to his referral, a conclusion confirmed by the fact that: (1) the specialist did not even meet the patient until after she had been admitted to the hospital; and (2) the referring 7

8 physician's office actually scheduled the appropriate hospital arrangements facts which are not presented here. the test itself and then made therefor (142 Misc2d at 865), In light of the foregoing, and since none of the plaintiffs' remaining contentions raise triable issues with respect to Andersen's liability, her motion for summary judgment dismissing the complaint and all cross claims insofar as interposed against her, is granted. The plaintiff's causes against defendants Ong and the North Shore defendants are severed and continue. The foregoing constitutes the decision and order of the Court. J.S.C. Dated: December 20, 2000