State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 5, 2015 519510 

________________________________

LUKE TRIFILETTI, an Infant,

by APRIL CRANKER, 

His Parent and Guardian, 

et al.,

Respondents,

v

MEMORANDUM AND ORDER

ELAINE HEE-YOUNG CHEON-LEE

et al.,

Defendants,

and

ELLIS HOSPITAL et al.,

Appellants.

________________________________

Calendar Date: January 7, 2015

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

Thorn Gershon Tymann & Bonanni, LLP, Albany (Mia D.

VanAuken of counsel), for appellants.

Law Firm of Jonathan Reiter, New York City (Jonathan C.

Reiter of counsel), for respondents.

__________

Lahtinen, J.P.

Appeal from an order of the Supreme Court (Reilly Jr., J.),

entered March 14, 2014 in Schenectady County, which, among other

things, denied a motion by defendants Ellis Hospital and Bellevue

Woman's Medical Center, Inc. for summary judgment dismissing the

complaint against them.
-2- 519510 

Plaintiff April Cranker (hereinafter the mother) gave birth

via cesarean section to plaintiff Luke Trifiletti (hereinafter

the child) at defendant Bellevue Woman's Medical Center, Inc. 

Defendant Elaine Hee-Young Cheon-Lee, the mother's obstetrician,

performed the surgical procedure. During the procedure, CheonLee was initially unable to remove the child because his head was

deep in the birth canal. An unidentified nurse inserted a hand

vaginally to push the child's head up the canal so Cheon-Lee

could remove the child through the surgical incision. Although

not noted immediately, the child developed difficulties within a

day and was discovered to have suffered a fractured skull and

other asserted serious injuries.

Plaintiffs commenced this action against various defendants

including, as relevant to this appeal, Bellevue and defendant

Ellis Hospital (hereinafter collectively referred to as

defendants) alleging, among other things, that the unidentified

nurse employed by defendants who assisted Cheon-Lee applied

excessive force to the child's head causing his injuries. 

Defendants moved for summary judgment dismissing the complaint

against them contending that they were not liable since Cheon-Lee

was not their employee and their nurse allegedly acted at her

request and under her supervision. Supreme Court denied the

motion and defendants now appeal.

"It is well settled that, in general, a hospital may not be

held vicariously liable for the malpractice of a private

attending physician who is not an employee, and may not be held

concurrently liable unless its employees committed independent

acts of negligence or the attending physician's orders were

contraindicated by normal practice such that ordinary prudence

required inquiry into the correctness of the attending

physician's orders" (Wulbrecht v Jehle, 92 AD3d 1213, 1214 [2012]

[internal quotation marks, brackets and citation omitted]; see

Zhuzhingo v Milligan, 121 AD3d 1103, 1106 [2014]; Sledziewski v

Cioffi, 137 AD2d 186, 188-190 [1988]). Cheon-Lee testified that

she could not remember who assisted her by attempting to flex the

child's head and, although she acknowledged that she would

usually ask a nurse to push "from below" as she "reach[ed] from

above," she could not recall whether she had requested or

instructed anyone to assist her during this particular procedure. 
-3- 519510 

Defendants' expert stated that a nurse would perform this type of

assistance only if requested by the attending physician, such

assistance is not uncommon and the amount of force that could be

employed by such assistance could not have fractured the child's

skull.

Plaintiffs' expert, however, opined that the child's

injuries would not have occurred "in the absence of excessive

force," there was "no possibility" that the child's skull was

fractured in utero and there was "no evidence" that the injuries

occurred after delivery. He stated that, although the maneuver

used to free the child's head should be "done in a gently nontraumatic fashion, there is clearly the potential to cause

serious injury . . . if excessive force is used." He set forth

his opinion to a reasonable degree of medical certainty that the

child's injuries were caused by the use of excessive force. 

Viewing the evidence in the light most favorable to plaintiffs as

the parties opposing summary judgment (see e.g. Zapata v

Buitriago, 107 AD3d 977, 978 [2013]; Coyle v Bommarito, 106 AD3d

1324, 1327 [2013]), there is a factual issue as to whether one of

defendants' nurses engaged in an act of independent negligence by

using excessive force not requested by Cheon-Lee when attempting

to flex or push the child's head from the birth canal.

Garry, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court