Malcolm v. Mount Vernon Hosp.

Malcolm v Mount Vernon Hosp.

2003 NYSlipOp 17961

Decided on October 30, 2003

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2003

Mazzarelli, J.P., Ellerin, Williams, Lerner, Gonzalez, JJ.
1420







Brian J. Isaac
Gina L. Bernardi

Order, Supreme Court, Bronx County (Kenneth Thompson, J.), entered on or
about January 15, 2002, which, in a medical malpractice action, denied
defendant-appellant hospital’s motion for summary judgment dismissing the
complaint against it, affirmed, without costs.

On January 12, 1997, plaintiff went to his primary physician, Dr. Edwards,
complaining that for two weeks he had a persistent cough, chills, shortness of
breath and difficulty breathing when he was lying down. Dr. Edwards instructed
plaintiff to go to the emergency room of The Mount Vernon Hospital (the
Hospital), where, on January 13, 1997, he received a chest x-ray and was
admitted for pneumonia. Plaintiff remained in the Hospital and was given an
echocardiogram on January 15. Dr. Edwards thereafter sought a cardiac
consultation with Dr. Lee. At his deposition, Dr. Edwards testified that he had
consulted with Dr. Lee, a cardiologist “on staff” at the Hospital, on a number
of prior occasions, and that he had asked the house staff to page Dr. Lee to see
plaintiff.

Dr. Lee is an attending physician at the Hospital who teaches residents in
the intensive care unit (ICU), and holds a clinic at the Hospital four or five
times a year. He saw plaintiff on January 20, 1997, in the ICU of the Hospital
and performed a physical evaluation of him. Dr. Lee reviewed the chest x-ray and
echocardiogram, and concluded that plaintiff suffered from dilated congestive
cardiomyopathy. He prescribed a variety of medications for plaintiff, which did
not include anticoagulation therapy, and he saw plaintiff for follow-up on
January 21, 24, 25, 26 and 27. All of these visits took place in the ICU. [*2]

On January 24, plaintiff suffered a stroke. A neurologist consulted by Dr.
Edwards opined that a stroke in a 46-year-old man without high blood pressure
and with cardiomyopathy was most likely caused by a blood clot breaking off in
the heart.

Plaintiff brought this action against Dr. Edwards, Dr. Lee and the Hospital,
asserting that the stroke and the resulting neurologic deficits arose from
defendants’ failure to administer anticoagulants when his cardiomyopathy was
first detected. As relevant to this appeal, the Hospital moved for summary
judgment, arguing that plaintiff was given appropriate care, and that, in any
event, it could not be held vicariously liable, because plaintiff was a private
patient of Dr. Edwards, and Dr. Lee was a private consultant, not employed by
the Hospital. Plaintiff opposed the motion, arguing that Dr. Lee’s failure to
recommend anticoagulants at the time of his consultation constituted negligence
for which the Hospital could be liable, and that the question of whether the
Hospital was responsible for Dr. Lee’s alleged negligence was for the jury. The
court denied the Hospital’s motion. This appeal ensued.

A hospital is not exempt from liability for the negligence of physicians
utilizing its facilities to practice medicine based upon the particular doctor’s
status as a private attending physician, or an independent contractor (Mduba
v Benedictine Hosp., 52 AD2d 450). Instead, “a hospital may be held
vicariously liable, based upon the principle of agency by estoppel, for the acts
of an independent physician where the physician was provided by the hospital or
was otherwise acting on the hospital’s behalf, and the patient reasonably
believed that the physician was acting at the hospital’s behest (Soltis v
State of New York, 172 AD2d 919)” (Sarivola v Brookdale Hosp. And Med.
Ctr., 204 AD2d 245, 245-46, lv denied 85 NY2d 805).

As the proponent of a motion for summary judgment, the Hospital had the
burden of proving, as a matter of law, that it is not vicariously liable for the
defendant doctor’s alleged acts of negligence. To do this, it must come forward
with sufficient evidence to demonstrate the absence of any material issues of
fact as to whether or not Dr. Lee was acting as its agent. Because the Hospital
did not meet this burden, summary judgment was properly denied (see
Alvarez v Prospect Hospital, 68 NY2d 320, 324; Delprete v Victory
Memorial Hosp., 191 AD2d 673; Augeri v Massoff, 134 AD2d 307).

The record before the motion court was insufficient to make [*3]a conclusive determination that the defendant Hospital
was not responsible for any alleged negligence by Dr. Lee. Although Dr. Lee was
not a Hospital employee, Dr. Edwards chose Dr. Lee from a number of
cardiologists “on staff” at the Hospital who are available for consultations.
Dr. Lee had a number of other teaching and clinical responsibilities at the
Hospital, and he was called to assist with plaintiff’s care in the ICU in
response to a page by Hospital employees. Collectively, these facts preclude our
conclusion, as a matter of law, at this stage in the proceedings, that Dr. Lee
was not “provided by the hospital or was otherwise acting on the hospital’s
behalf” (Sarivola, supra at 245-246; compare Klippel v
Rubinstein, 300 AD2d 448, lv denied __ NY2d __; 2003 NY LEXIS
1763 [where, after trial on the merits, plaintiff failed to proffer any evidence
regarding the nature of the relationship between various treating doctors and
the defendant hospital, vicarious liability charge deemed unwarranted]).

In addition, the Hospital has not shown that plaintiff could not have
“reasonably believed that [Dr. Lee] was acting at the hospital’s behest”
(Sarivola, supra at 246). All of the attendant circumstances of
the particular case are relevant to making this determination (Augeri v
Massoff, 134 AD2d 308). While the dissent attempts to distinguish the facts
of this case and the treatment provided to the plaintiff in Soltis,
supra, it remains that here, as in Soltis, the physicians
conducted their treatment while the plaintiff patients were admitted to the
relevant medical facilities. In addition, there was no evidence in either case
that the patient requested a particular doctor, had any prior relationship with
that physician, or was aware of the particular nature of the doctor’s
affiliation with the medical facility.

All concur except Williams and Gonzalez, JJ. who dissent in a
memorandum by Gonzalez, J. as follows:

GONZALEZ, J. (dissenting)

Contrary to the majority’s holding, I believe that plaintiff has failed to
raise a triable issue of fact on the issue of whether the defendant hospital may
be held vicariously liable for the alleged negligence of the defendant
cardiologist. Therefore, I respectfully dissent.

“When treatment is rendered by a private attending [*4]physician, not in the employ of a hospital, the general
rule is that the hospital is not liable for acts of malpractice which are
committed in carrying out the independent physician’s orders (Toth v
Community Hosp., 22 NY2d 255, 265; Fiorentino v Wenger, 19 NY2d 407,
415)” (Sarivola v Brookdale Hosp. and Med. Ctr., 204 AD2d 245, lv
denied 85 NY2d 805). “However, a hospital may be held vicariously liable,
based on the principle of agency by estoppel, for the acts of an independent
physician where the physician was provided by the hospital or was otherwise
acting on the hospital’s behalf, and the patient reasonably believed that
the physician was acting at the hospital’s behest (Soltis v State, 172
AD2d 919)(emphasis added)” (Sarivola v Brookdale Hosp. and Med. Ctr., 204
AD2d 245-246).

Plaintiff has failed to submit evidence to raise a triable issue as to either
of these two elements, both of which must be
proven for vicarious liability
(Sarivola v Brookdale Hosp. and Med. Ctr., 204 AD2d at 245-246; Soltis
v State of New York, 172 AD2d at 919-920). The evidence shows that the
cardiologist was not employed or paid by the hospital and he did not treat
plaintiff at the hospital’s request. Nor is there any evidence that the hospital
exercised any control over the treatment rendered by him (cf. Mduba v
Benedictine Hosp., 52 AD2d 450, 452-453).

Moreover, although plaintiff entered the hospital via the emergency room, he
did so in response to the instructions of his private attending physician. Thus,
this is not a case “where a patient enters the hospital through the emergency
room and seeks treatment from the hospital, not from a particular physician”
(Shafran v St. Vincent’s Hosp. and Med. Ctr., 264 AD2d 553, 558;
cf. Klippel v Rubinstein, 300 AD2d 448, 449, lv
denied 100 NY2d 508 [vicarious liability charge not warranted where
decedent admitted to hospital under the care of her private doctor for routine
labor and delivery]). Instead, the record shows that the cardiologist performed
a “consult” at the request of plaintiff’s private physician, not the hospital.
Contrary to the majority’s argument, the characterization that the cardiologist
was “on staff” at the hospital is irrelevant given the absence of any actual
proof that he was in fact acting on behalf of the hospital in rendering
treatment to plaintiff (see Klippel v Rubinstein, 300 AD2d at
449).

Nor is there any evidence offered by plaintiff to raise a triable issue of
fact on the question of whether the plaintiff [*5]reasonably believed that the cardiologist was acting at
the hospital’s behest. Soltis v State of New York (172 AD2d 919), cited
by the majority, is distinguishable. In that case, involving an inmate who
received medical treatment by an independent doctor who performed consults on
inmates, there were several factors suggesting that the doctor was working at
the behest of the State. Such facts include that the claimant was initially
examined at the correctional facility by a physician’s assistant employed by the
State, that the assistant arranged for the subsequent consultation by the
private doctor, that the claimant signed a Department of Correctional Services
consent form and that the surgery was also performed at the State facility
(id.). This was ample evidence to suggest involvement by the State and
for the claimant to reasonably believe that those providing treatment were
acting on behalf of the State.

No similar factors are present here, where plaintiff’s treatment was
initiated and controlled by his private attending physician. Moreover, to the
extent the majority’s opinion suggests that a plaintiff’s subjective belief that
a doctor is working on behalf of the hospital, by itself, is sufficient to hold
the hospital vicariously liable, I respectfully disagree (see Sarivola
v Brookdale Hosp. and Med. Ctr., 204 AD2d 245-246). Accordingly, I would
reverse the order denying the Hospital’s motion to dismiss.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2003

CLERK