| Schultz v Shreedhar |
| 2009 NY Slip Op 07244 [66 AD3d 666] |
| October 6, 2009 |
| Appellate Division, Second Department |
| James Schultz, Respondent, v Rakesh Shreedhar,Defendant, and Nyack Hospital, Appellant. |
—[*1] Calano & Culhane, LLP, New York, N.Y. (Thomas A. Culhane of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendant Nyack Hospitalappeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered October17, 2008, which denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantNyack Hospital for summary judgment dismissing the complaint insofar as asserted against it isgranted.
The Supreme Court erred in denying the motion of the defendant Nyack Hospital(hereinafter Nyack) for summary judgment dismissing the complaint insofar as asserted againstit. "Generally, a hospital cannot be held vicariously liable for the malpractice of a privateattending physician who is not its employee" (Quezada v O'Reilly-Green, 24 AD3d 744, 746 [2005]; see Sampson v Contillo, 55 AD3d588, 589 [2008]; Dragotta vSouthampton Hosp., 39 AD3d 697, 698 [2007]; Salvatore v Winthrop Univ. Med. Ctr., 36 AD3d 887, 888 [2007];Christopherson v Queens-Long Is. Med.Group, P.C., 17 AD3d 393, 394 [2005]; Orgovan v Bloom, 7 AD3d 770 [2004]). However, "an exceptionto the general rule exists where a patient comes to the emergency room seeking treatment fromthe hospital and not from a particular physician of the patient's choosing" (Salvatore vWinthrop Univ. Med. Ctr., 36 AD3d at 888; see Sampson v Contillo, 55 AD3d at589; Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d at 394; Orgovanv Bloom, 7 AD3d at 771).
Here, in opposition to Nyack's prima facie showing of entitlement to judgment as a matter oflaw, the plaintiff failed to raise a triable issue of fact as to whether, in arriving at Nyack'semergency room at the direction of his private physician, he sought treatment from Nyack andnot from the defendant Rakesh Shreedhar, M.D., the private attending surgeon who had beencalled to the hospital by the plaintiff's private physician and performed an exploratorylaparotomy several hours later (seeBevelacqua v Yonkers Gen. Hosp., 10 AD3d 668 [2004]; Orgovan v Bloom, 7AD3d at 771; O'Regan v Lundie, 299 AD2d 531 [2002]; Johanessen v Singh,259 AD2d 670, 671 [1999]; see also Christopherson v Queens-Long [*2]Is. Med. Group, P.C., 17 AD3d at 394; Klippel vRubinstein, 300 AD2d 448, 449 [2002]). Moreover, the plaintiff failed to raise a triable issueof fact as to whether Nyack's emergency room staff committed independent acts of malpracticeand as to whether any order given by Dr. Shreedhar was so contraindicated that Nyack's staffshould not have followed it (see Toth vBloshinsky, 39 AD3d 848, 850 [2007]; Cook v Reisner, 295 AD2d 466, 467[2002]; see also Rizzo v Staten Is. Univ.Hosp., 29 AD3d 668, 669 [2006]). Furthermore, the plaintiff failed to raise a triableissue of fact as to whether Nyack may be held liable under a theory of ostensible or apparentagency (see Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d at 394; cf. Sosnoff v Jackman, 45 AD3d568, 571 [2007]; Gunther v Staten Is. Hosp., 226 AD2d 427, 428 [1996]).
In view of our determination, we need not reach Nyack's remaining contention. Mastro, J.P.,Santucci, Chambers and Lott, JJ., concur.