| St. Andrews v Scalia |
| 2008 NY Slip Op 04430 [51 AD3d 1260] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Kenneth St. Andrews, Respondent, v Steven V. Scalia et al.,Defendants, and Glens Falls Hospital, Appellant. |
—[*1] Dreyer Boyajian, L.L.P., Albany (John B. Casey of counsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered May 31, 2007in Warren County, which partially denied a motion by defendant Glens Falls Hospital forsummary judgment dismissing the complaint against it.
On August 2, 2002, plaintiff underwent a surgical hernia repair performed by defendantSteven V. Scalia, plaintiff's surgeon, who was assisted by defendant Gordon W. Single, also asurgeon, at defendant Glens Falls Hospital (hereinafter the hospital). Scalia and Single,independent physicians employed by defendant Baywood Surgical Associates, P.C. (hereinafterBSA), had staff privileges at the hospital and rotated with other surgeons for "on call" duty at thehospital emergency room. Plaintiff was discharged two days after the surgery, with instructionsfrom Scalia to follow up with an office appointment in two weeks. On August 5, 2002, the dayafter his discharge, plaintiff went to the hospital's emergency room complaining of abdominalpain and other postoperative complications. He signed the hospital's consent to treat form, andwas treated by Single (and possibly other emergency room physicians) and discharged hourslater.[*2]
Plaintiff remained at home attempting to recover untilAugust 18, 2002, when he went to the hospital emergency room and was then admitted by Scaliawith a diagnosis of intra-abdominal abscess secondary to bowel fistula. Scalia performed surgeryto rid plaintiff of the infection and performed an ileostomy; plaintiff remained hospitalized forweeks and, subsequently, underwent additional surgeries and procedures by another physician ata different hospital.
Plaintiff commenced this negligence action against the hospital, Scalia, BSA and Single, andhas reportedly settled all claims against Scalia, Single and BSA. The hospital moved forsummary judgment dismissing the claims against it. Supreme Court—as relevanthere—[FN*]denied the motion with respect to plaintiff's claim that the hospital is vicariously liable forSingle's medical malpractice in the emergency room for failing to diagnose and treat hispostoperative complications. The hospital now appeals.
Under settled principles, a hospital is not ordinarily liable for the negligent acts of anindependent treating physician who is not an employee of the hospital but, rather, is part of anindependent group of physicians, except under an ostensible/apparent agency theory, i.e., wherethe hospital's words or conduct communicated to a third-party patient give rise to the appearanceand belief that the agent-independent physician possesses authority to act on behalf of thehospital (see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Thurman v United Health Servs. Hosps.,Inc., 39 AD3d 934, 935-936 [2007], lv denied 9 NY3d 807 [2007]; cf. Imbierowicz v A.O. Fox Mem.Hosp., 43 AD3d 503, 507 [2007]). Pursuant to that theory, under the emergency roomdoctrine, "a hospital may be held vicariously liable for the acts of [an] independent physician[ ] ifthe patient enters the hospital through the emergency room and seeks treatment fromthe hospital, not from a particular physician" (Citron v Northern Dutchess Hosp., 198AD2d 618, 620 [1993], lv denied 83 NY2d 753 [1994] [emphases added]; accordThurman v United Health Servs. Hosps., Inc., 39 AD3d at 936-937; Monostori v Murphy, 34 AD3d882, 883 [2006]; King vMitchell, 31 AD3d 958, 960 [2006]).
The hospital, as the proponent of the motion, established that Single was not its employee,but failed to demonstrate the inapplicability of the emergency room doctrine by submitting proofthat plaintiff, who entered and was treated at its emergency room on August 5, 2002, soughttreatment only from Single and not from the hospital (see Payant v Imobersteg, 256AD2d 702, 703-704 [1998]; compare Thurman v United Health Servs. Hosps., Inc., 39AD3d at 936-937). The hospital's proof in support of its motion failed to establish thecircumstances under which Single came to treat plaintiff in the emergency room on August 5.Indeed, Single—who was covering for Scalia that day—had no specific recollectionof whether he was on call in [*3]the emergency room and treatedplaintiff in that capacity, if the emergency room contacted him directly (due, for example, to hisrole as the assisting surgeon in the recent surgery or as the physician covering Scalia), or ifplaintiff requested him. No one testified that plaintiff specifically requested or consented to beingtreated by Single. The emergency room medical records are equivocal, indicating in severalplaces in type that the admitting and attending doctor is "unknown," reflecting that plaintiff didnot give Single's name when he presented to the emergency room and, later, an unidentifiedperson handwrote Single's name over "unknown." The hospital submitted no evidence thatplaintiff had ever met Single, was aware that Single had assisted in his August 2, 2002 surgery orthat Single was not a hospital employee or was affiliated with BSA or Scalia, or that plaintiff hadany known physician-patient relationship with Single. While plaintiff's testimony may supportthe conclusion that Scalia's office was called by plaintiff's family before he was taken to theemergency room on August 5, 2002, there is no evidence that plaintiff was directed by anyone atBSA to go to this particular emergency room (or to meet Single at the emergency room), thatplaintiff was told that Single was covering for Scalia or was on call, or that plaintiff requestedSingle when he presented at the emergency room. Thus, the hospital failed to submit prima facieproof entitling it to summary judgment on plaintiff's claim against it premised upon its vicariousliability for Single's alleged negligence on August 5.
Moreover, plaintiff's testimony and affidavit offered in opposition, if credited, wouldestablish that he did not request Single or know Single or that Single had assisted in the surgeryand was Scalia's partner, until after the August 5, 2002 emergency room treatment and discharge.He asserted that he had sought treatment at the emergency room from the hospital. Given thatplaintiff presented to the emergency room, and that his proof would support the conclusion thathe did not knowingly seek treatment from an independent physician or any particular physician, ajury could conclude that plaintiff "reasonably believed that he was receiving medical care fromthe hospital in general rather than from a particular physician" (Thurman v United HealthServs. Hosps., Inc., 39 AD3d at 937; see Monostori v Murphy, 34 AD3d at 883-884;cf. King v Mitchell, 31 AD3d at 960-961). As plaintiff raised triable issues of fact as towhether the hospital may be vicariously liable for Single's alleged negligence, Supreme Courtproperly denied that part of the hospital's motion for summary judgment dismissing this claim.
Cardona, P.J., Mercure, Lahtinen and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: The hospital also moved fordismissal of plaintiff's malpractice claim against it based upon Scalia's original August 2, 2002surgery, which plaintiff did not oppose, and defendant was awarded partial summary judgmenton that claim.