I respectfully dissent in part. With respect to the potential liability in negligence of defendant Liang Bartkowiak, M.D., a resident, I agree with the majority that there is an issue of fact whether the performed procedure so “greatly deviate[d] from normal practice that the resident should be held liable for failing to intervene” (Soto v Andaz, 8 AD3d 470, 471 [2004]). I further conclude, however, that there is also an issue of fact whether Dr. Bartkowiak committed acts of negligence for which she can be held personally liable despite her status as a resident. As the majority notes in quoting from Soto, “[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” (id. at 471). Thus, a resident’s shield from liability is limited to situations in which the resident is acting under the “direct supervision” of the primary physician (id. [emphasis added]; see Toth v Bloshinsky, 39 AD3d 848, 850 [2007]; Filippone v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 253 AD2d 616, *1716618-619 [1998]). The shield from liability is not based simply on one’s status as a resident but, rather, it exists because at the time of alleged malpractice a more experienced primary physician was in a direct and immediate position to keep a patient from harm. Where the primary physician is not in such a position, however, I see no reason why the resident should not be held responsible for his or her actions or inactions.
Here, the record establishes that Dr. Bartkowiak was overseeing the delivery of Dawn M. Lorenzo (plaintiff) hours before the primary physician, defendant Kenneth R. Kahn, M.D., became directly involved in the birth of plaintiffs’ child. In my view, it is not possible from this record, which plaintiffs’ expert has stated contains one of the most poorly documented deliveries he has seen, to determine what effect the actions or inactions of Dr. Bartkowiak had on plaintiffs condition or the decision of the primary physician to order a forceps delivery and an episiotomy. In addition, in my view it is not possible at this juncture of the litigation to parse out, as a matter of law, what actions were independently performed by Dr. Bartkowiak as opposed to the actions that were “direct[ly] supervised] ” such that it is appropriate to hold only, the primary physician liable (Soto, 8 AD3d at 471). Indeed, I am unable to determine at this juncture whether an independent act of negligence on the part of Dr. Bartkowiak was a proximate cause of plaintiffs injuries (of. Filippone, 253 AD2d at 619). I therefore would affirm that part of the order denying those parts of the motion of Dr. Bartkowiak and defendant Children’s Hospital of Buffalo seeking summary judgment dismissing the first causes of action, for negligence, against them. Present—Scudder, P.J., Peradott, Lindley and Gorski, JJ.