Order, Supreme Court, New York County (Joan B. Carey, J.),
It is well settled that a hospital is not vicariously liable for the acts of a private attending physician at its facility who is retained by a patient and is immune from liability where its employees follow the direction of the attending physician, unless that physician’s orders “are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” (Walter v Betancourt, 283 AD2d 223, 224 [2001] [internal quotation marks and citations omitted]).
Here, the surgery on plaintiffs decedent was performed by Dr. Rubano, a private attending surgeon at Beth Israel Medical Center, referred by the patient’s treating physician. Plaintiff maintains that Beth Israel should have prevented Dr. Rubano from performing the surgery because the octogenarian patient had lost 25% of her body weight prior to her hospital admission.
Plaintiff’s expert’s affidavit fails to raise an issue of fact whether the course of medical treatment undertaken by Dr. Rubano was so clearly contraindicated by the patient’s weight loss as to warrant intervention by hospital staff. Nowhere does plaintiffs expert address the fact that initial testing indicated a “likely tumor in the region of the right colon” and further testing revealed a “lesion which was positive for malignancy.” Thus, the condition of plaintiff’s decedent’s marked weight loss is never evaluated against her doctors’ opinion that her overall deteriorating condition, including her weight loss, substantiated by objective medical evidence, compelled prompt, invasive medical treatment. The expert’s conclusion that surgery should have been postponed until the patient gained weight is therefore based on pure speculation that with time she would gain the weight necessary to tolerate surgery. Plaintiffs expert’s further conclusion that the third surgery to remove intestinal blockage was unnecessary, as that condition in the immediate aftermath of surgery usually resolves itself, is similarly speculative, given the expert’s failure to evaluate the situation against the patient’s advanced age and weakened condition, both before and after her colon cancer surgery.
Plaintiffs position would seem to suggest that every hospital employ a cadre of specialists to be on hand to evaluate each and every surgery performed by a private surgeon where the slight
