| Gardner v Brookdale Hosp. Med. Ctr. |
| 2010 NY Slip Op 04544 [73 AD3d 1124] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Crystal Gardner, Appellant, v Brookdale Hospital MedicalCenter, Respondent. |
—[*1]
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Jackson, J.), dated April 3, 2009, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"As a general rule, a hospital is not vicariously liable for the malpractice of a privateattending physician who is not its employee" (Padula v Bucalo, 266 AD2d 524, 524[1999]; see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Orgovan v Bloom, 7AD3d 770 [2004]; Johanessen v Singh, 259 AD2d 670, 671 [1999]). "However, anexception to the general rule exists when a patient comes to the emergency room seekingtreatment from the hospital and not from a particular physician of the patient's choosing"(Orgovan v Bloom, 7 AD3d 770, 771 [2004]; see Woodard v LaGuardia Hosp.,282 AD2d 529, 530 [2001]; cf. Abraham v Dulit, 255 AD2d 345 [1998]; Litwak vOur Lady of Victory Hosp. of Lackawanna, 238 AD2d 881 [1997]).
The defendant, Brookdale Hospital Medical Center (hereinafter the Hospital), established itsprima facie entitlement to judgment as a matter of law with respect to the issue of vicariousliability on the ground of apparent or ostensible agency (see Alvarez v Prospect Hosp.,68 NY2d 320, 325 [1986]; cf. Filemyr v Lombardo, 11 AD3d 581 [2004]). Itdemonstrated that Marvalette Gardner, the mother of the infant plaintiff, received prenatal care ata HIP Center, was referred to the Hospital on three occasions for prenatal testing by a privatephysician, and was instructed by her private physician to go to the Hospital for the infant's birth(cf. Filemyr v Lombardo, 11 AD3d 581 [2004]; Finnin v St. Barnabas Hosp.,306 AD2d 189 [2003]; Mduba v Benedictine Hosp., 52 AD2d 450 [1976]). Upon heradmission to the labor and delivery department, Gardner was treated by Dr. Stanislawa Szechter,an obstetrician on call from the HIP Center with privileges at the Hospital. The evidence thatGardner did not request a specific doctor when she arrived at the Hospital and had never heard ofor met Dr. Szechter before was insufficient to raise a triable issue of fact (see Christophersonv Queens-Long Is. Med. Group, P.C., 17 AD3d 393 [2005]; Bevelacqua v Yonkers Gen.Hosp., 10 AD3d 668 [2004]; Orgovan v Bloom, 7 AD3d at 771; Padula vBucalo, 266 AD2d [*2]at 525; Woodard v LaGuardiaHosp., 282 AD2d 529 [2001]).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Fisher, J.P., Balkin, Roman and Sgroi, JJ., concur.