Sheppard-Mobley v. King

Appellate Division of the Supreme Court of New York

Sheppard-Mobley v. King

8 A.D.3d 358, 777 N.Y.S.2d 767, 2004 N.Y. App. Div. LEXIS 7786

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 7, 2004

StatusPublished

Cited by6 cases

This text of 8 A.D.3d 358 (Sheppard-Mobley v. King) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sheppard-Mobley v. King, 8 A.D.3d 358, 777 N.Y.S.2d 767, 2004 N.Y. App. Div. LEXIS 7786 (N.Y. Ct. App. 2004).

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Opinion

[359]*359In an action to recover damages for medical malpractice, etc., the defendant Ira J. Spector appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 13, 2002, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing so much of the seventh cause of action as sought to recover damages against the appellant based upon lack of informed consent and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiffs.

As conceded by the plaintiffs during oral argument, Dr. Ira J. Spector was entitled to summary judgment dismissing so much of the seventh cause of action as sought to recover damages against him based upon lack of informed consent.

As to the remaining claims against him, however, Dr. Spector failed to make a prima facie showing of his entitlement to judgment as a matter of law by eliminating all triable issues of fact. In particular, there is a question of fact as to whether Dr. Spec-tor undertook to treat the plaintiff Karen Sheppard, thereby creating a physician-patient relationship (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, 269 AD2d 443 [2000]; Bienz v Central Suffolk Hosp., 163 AD2d 269, 270 [1990]). Moreover, assuming the existence of a physician-patient relationship, Dr. Spector also failed to establish that any care he provided to Sheppard was not a departure from good and accepted medical practice, and that any such departure was not a proximate cause of Sheppard’s injuries (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, supra).

The appellant’s remaining contention is without merit. Florio, J.P., S. Miller, Crane and Rivera, JJ., concur.

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[359]*359In an action to recover damages for medical malpractice, etc., the defendant Ira J. Spector appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 13, 2002, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing so much of the seventh cause of action as sought to recover damages against the appellant based upon lack of informed consent and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiffs.

As conceded by the plaintiffs during oral argument, Dr. Ira J. Spector was entitled to summary judgment dismissing so much of the seventh cause of action as sought to recover damages against him based upon lack of informed consent.

As to the remaining claims against him, however, Dr. Spector failed to make a prima facie showing of his entitlement to judgment as a matter of law by eliminating all triable issues of fact. In particular, there is a question of fact as to whether Dr. Spec-tor undertook to treat the plaintiff Karen Sheppard, thereby creating a physician-patient relationship (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, 269 AD2d 443 [2000]; Bienz v Central Suffolk Hosp., 163 AD2d 269, 270 [1990]). Moreover, assuming the existence of a physician-patient relationship, Dr. Spector also failed to establish that any care he provided to Sheppard was not a departure from good and accepted medical practice, and that any such departure was not a proximate cause of Sheppard’s injuries (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, supra).

The appellant’s remaining contention is without merit. Florio, J.P., S. Miller, Crane and Rivera, JJ., concur.

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Bluebook (online)

8 A.D.3d 358, 777 N.Y.S.2d 767, 2004 N.Y. App. Div. LEXIS 7786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheppard-mobley-v-king-nyappdiv-2004.

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