Fowler v. Buffa

2017 NY Slip Op 4213, 150 A.D.3d 606, 52 N.Y.S.3d 632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 2017
• Docket: 4116 4115
• Status: Published

Opinion

Orders, Supreme Court, Bronx County (Stanley Green, J.), entered October 3, 2016, which denied the motions of defendants Salvatore D. Buffa, M.D., Victoria A. Brand, CRNA, and Alliance Anesthesiology Associates, P.L.L.C. (Alliance), and defendant Surgicare Ambulatory Center, Inc. (Surgicare) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In this medical malpractice action, defendants Buffa, Brand, and Alliance failed to establish entitlement to judgment as a matter of law as to plaintiff’s claims that, inter alia, Dr. Buffa failed to devise an anesthesiology plan sufficient to sedate and anesthetize plaintiff during her cataract surgery, and that Brand failed to notice and address that plaintiff was experiencing increasing levels of pain during the procedure (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The court also correctly denied summary judgment to Surgicare. It is unclear from the record, in which Surgicare is listed in plaintiffs informed consent agreement as administering and directing anesthesia, whether Dr. Buffa was acting as an employee of, or on behalf of, Surgicare when he created the anesthesia plan for plaintiff (see Brown v Speaker, 33 AD3d 446, 447 [1st Dept 2006]; Harrington v Neurological Inst. of Columbia Presbyt. Med. Ctr., 254 AD2d 129, 130 [1st Dept 1998]).

We have considered the remaining contentions and find them unavailing.

Concur—Tom, J.P., Sweeny, Richter, Kapnick and Webber, JJ.