Plaintiff sued defendant-hospital, claiming that her surgery should have been postponed since she had lost one-quarter of her body weight prior to her admission. The First Department dismissed the complaint, in Garson v. Beth Israel Medical Center, which was decided on June 7, 2007.

The court noted that, as a matter of law, a hospital is not liable for the acts of a private attending physician who is retained by a patient, and is not liable when its employees follow that physician's orders, unless the orders are clearly contraindicated by normal practice.

Here, the court found plaintiff's expert's affidavit lacking, in that it did not evaluate plaintiff's weight loss against her referring doctors' opinion that her overall deteriorating condition, including her weight loss, compelled the surgery. In addition, the court rejected as speculative the expert's conclusion that, with time, plaintiff would have regained the weight and would have better tolerated the surgery.