SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

39 

CA 11-00510 

PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

NANCY S. WULBRECHT, AS ADMINISTRATRIX OF THE 

ESTATE OF ROBERT M. WULBRECHT, DECEASED, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

DIETRICH JEHLE, M.D., ET AL., DEFENDANTS, 

AND ERIE COUNTY MEDICAL CENTER CORPORATION, 

DEFENDANT-RESPONDENT. 

 

BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (John M.

Curran, J.), entered October 13, 2010 in a medical malpractice and

wrongful death action. The order, among other things, granted

plaintiff’s motion for leave to reargue and upon reargument adhered to

its prior order dismissing all direct claims against defendant Erie

County Medical Center Corporation and its employees and agents. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff, as administratrix of the estate of her

husband (decedent), commenced this medical malpractice and wrongful

death action seeking damages for the death of decedent, a psychiatric

patient who committed suicide. Plaintiff appeals from an order

denying her motion seeking to settle the prior order granting those

parts of the motion of Erie County Medical Center Corporation

(defendant) for summary judgment dismissing the direct claims against

it. The order also granted plaintiff’s motion for leave to reargue

her opposition to those parts of defendant’s motion for summary

judgment dismissing the medical malpractice claims against it arising

out of the acts and omissions of its employee, former defendant Denise

Giessert, M.D, and, upon reargument, Supreme Court adhered to its

original determination granting defendant’s motion with respect to

those claims. We affirm.

“[I]t is well settled that, ‘[i]n 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
-2- 39 

CA 11-00510 

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]’ . . . In addition,

‘[a] resident who assists a doctor during a medical procedure, and who

does not exercise any independent medical judgment, cannot be held

liable for malpractice so long as the doctor’s directions did not so

greatly deviate from normal practice that the resident should be held

liable for failing to intervene’ ” (Lorenzo v Kahn, 74 AD3d 1711,

1713; see Muniz v Katlowitz, 49 AD3d 511, 513).

Defendant established its entitlement to judgment as a matter of

law with respect to the medical malpractice claims against it arising

out of the acts and omissions of Dr. Giessert, the resident

psychiatrist who first met with decedent prior to his admission to the

hospital. The evidence submitted by defendant demonstrated that Dr.

Giessert was acting under the supervision of defendant Victoria

Brooks, M.D. and defendant Hong Yu, M.D., the attending psychiatrists

who were required to approve any orders signed by Dr. Giessert. Thus,

defendant cannot be held liable for any alleged malpractice on the

part of Dr. Giessert, inasmuch as she did not exercise any independent

medical judgment, and the directions of Dr. Brooks and Dr. Yu did not

so greatly deviate from normal practice that Dr. Giessert should have

intervened (see Lorenzo, 74 AD3d at 1713; Muniz, 49 AD3d at 513-514;

Soto v Andaz, 8 AD3d 470, 471). Plaintiff failed to raise a triable

issue of fact in opposition (see generally Zuckerman v City of New

York, 49 NY2d 557, 562).

Defendant also established its entitlement to judgment as a

matter of law with respect to the claims against it for common-law

negligence. “ ‘The distinction between ordinary negligence and

malpractice turns on whether the acts or omissions complained of

involve a matter of medical science or art requiring special skills

not ordinarily possessed by lay persons or whether the conduct

complained of can instead be assessed on the basis of common everyday

experience of the trier of the facts’ ” (Kerker v Hurwitz, 163 AD2d

859, 859, amended on rearg 166 AD2d 931). In addition, “a private

hospital is required to exercise reasonable care and diligence in

safeguarding a patient, measured by the capacity of the patient to

provide for his [or her] own safety” (Horton v Niagara Falls Mem. Med.

Ctr., 51 AD2d 152, 154, lv denied 39 NY2d 709). Failure to “restrain,

supervise and exercise care for [a patient’s] safety” in an adequate

manner constitutes common-law negligence (White v Sheehan Mem. Hosp.,

119 AD2d 989).

Here, defendant met its initial burden with respect to the claims

against it for common-law negligence. The medical records and

deposition testimony submitted by defendant demonstrated that its

staff checked on decedent at 30-minute intervals in accordance with

the treatment plan. Plaintiff failed to submit evidence sufficient to

raise a triable issue of fact in opposition (see generally Zuckerman,

49 NY2d at 562).
-3- 39 

CA 11-00510 

Entered: February 10, 2012 Frances E. Cafarell

Clerk of the Court