KIETH SERVIS NO JUSTICE FOR KEVIN DEANE troy New York

The Court finds that an issue of fact exists with respect to whether Mt. Sinai, through the actions of Dr. Flanagan, as

well as other administrators at the hospital, authorized, participated in, consented to or ratified the conduct giving rise

to the punitive damages. As set forth above, an award of punitive damages in this action would be based on Mt. Sinai,

and its staffs', actions in allowing patients with significant injuries and health considerations, such as spinal chord injuries

and brain trauma, to go unexamined by an attending physician for a period of two (2) days. Moreover an award of

punitive damages herein would be based upon Mt. Sinai's failure to have a system in place that would alert an

administrator at the facility when an on-call attending fails to appear for work. Dr. Flanagan, as an administrator of a

rehabilitation facility where many patients have sustained catastrophic bodily injuries, has a responsibility to make sure

that a physician that is scheduled to work on a certain weekend actually appears for work, to have the means to be

notified if that physician fails to appear for work, as well as the responsibility to locate that physician or find a

replacement on any occasion where that physician does fail to appear. As a hospital, which is entrusted with the lives of

its patients, Mt. Sinai cannot simply have an attending physician not show up for an entire weekend, and have

inexperienced, and overworked, resident physicians be solely responsible for the handling of the care of these patients.

Based upon the foregoing, a jury could reasonably find that Mt. Sinai participated in or authorized these failures, and

find complicity on the part of Mt. Sinai.

Lastly, defendants argue that plaintiff failed to plead a cause of action for which punitive damages can be sustained. The

Court finds this argument to be without merit. In addition to pleading a cause of action for medical malpractice, plaintiff

incorrectly plead a separate cause of action for punitive damages that alleged reckless indifference to patient care. The

Court acknowledges, and plaintiff concedes, that a demand for punitive damages does not amount to a separate cause

of action for pleading purposes. See.

Grazioli v. Ecompass Ins. Co., 40 AD3d 696 [2d Dept. 2007];

Royal Globe Ins.

Co. v. Chock Full O'Nuts Corp., 86 AD2d 315 [1st Dept. 1982]

. Notwithstanding, such error does not warrant the

dismissal of any and all claims for punitive damages in this action. It is clear from reading the complaint that plaintiff

was alleging that the defendants alleged malpractice committed in connection with Mr. Deane's care constituted

negligence and/or reckless indifference to patient care. It is also clear that plaintiff sought punitive damages in

connection with the alleged malpractice, as the ad damnum clause expressly states that plaintiff seeks punitive

damages from defendant. Accordingly, defendants motion is denied in its entirety.

Based upon the foregoing,

ORDERED that the motion by defendants The Mount Sinai Hospital, Adam B. Stein, M.D., and Mary Katherine Nutini,

D.O., s/h/a Marykay Nutini, D.O, for, inter alia, partial summary judgment dismissing any and all claims for punitive

damages asserted against them in the complaint is denied; and it is further

ORDERED that counsel for all parties are to appear before the court on September 10, 2009, at 9:30am, at 60 Centre

Street, room 228, Part 29, for jury selection.

1. Although Rebecca Brown, M.D. was named as a defendant, she was not served