| Sullivan v Sirop |
| 2010 NY Slip Op 05756 [74 AD3d 1326] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Kristen Sullivan et al., Appellants-Respondents, v RichardSirop et al., Defendants, and Good Samaritan Hospital,Respondent-Appellant. |
—[*1] Heidell, Pittoni, Murphy & Bach LLP, White Plains, N.Y. (Daniel S. Ratner and DarylPaxson of counsel), for respondent-appellant.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appealfrom so much of an order of the Supreme Court, Rockland County (Nelson, J.), dated August 12,2009, as granted that branch of the motion of the defendant Good Samaritan Hospital which wasfor summary judgment dismissing the claim that it was vicariously liable for the allegedmalpractice of a nonparty ultrasound sonographer, and the defendant Good Samaritan Hospitalcross-appeals, as limited by its brief, from so much of the same order as denied that branch of itsmotion which was for summary judgment dismissing the claim that it was vicariously liable forthe alleged malpractice of the defendant Harry N. Boltin.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branchof the motion of the defendant Good Samaritan Hospital which was for summary judgmentdismissing the claim that it was vicariously liable for the alleged malpractice of the defendantHarry N. Boltin is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Good Samaritan Hospital.
Contrary to the plaintiffs' contention, the Supreme Court properly held that the defendantGood Samaritan Hospital (hereinafter Good Samaritan) was entitled to summary judgmentdismissing the claim that it was vicariously liable for the alleged malpractice of Diane Barron, anultrasound sonographer employed by the hospital. The plaintiffs asserted that Barron committedmalpractice in failing to detect or report the infant plaintiff's enlarged liver when Barron wastaking a sonogram of his kidneys. However, in opposition to Good Samaritan's prima facieshowing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issueof fact. Barron's deposition testimony, upon which the plaintiffs relied, demonstrated that shehad no duty to interpret or make notes on the sonograms she performed and that [*2]it was the duty of the radiologist who reviewed these studies tointerpret them. The affidavit of the plaintiffs' expert also was insufficient to raise a triable issueof fact because it was conclusory, and that expert conceded that it is not the responsibility of anultrasound sonographer to interpret a radiological study (see Furey v Kraft, 27 AD3d 416[2006]). Since there is no question of fact as to whether Barron was negligent, Good Samaritancould not be held vicariously liable for Barron's actions.
The Supreme Court, however, erred in denying that branch of Good Samaritan's motionwhich was for summary judgment dismissing the claim that it was vicariously liable for thealleged malpractice of the defendant radiologist Harry N. Boltin. In general, "a hospital may notbe held [liable] for the acts of [a physician] who was not an employee of the hospital, but one ofa group of independent contractors" (Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986])."However, vicarious liability for the medical malpractice of an independent, private attendingphysician may be imposed under a theory of apparent or ostensible agency by estoppel"(Dragotta v Southampton Hosp., 39 AD3d 697, 698 [2007]). In order to create suchapparent agency, the plaintiff must "reasonably rely on the appearance of authority, based onsome misleading words or conduct by the principal, not the agent. Moreover, the third party mustaccept the services of the agent in reliance upon the perceived relationship between the agent andthe principal, and not in reliance on the agent's skill" (Dragotta v Southampton Hosp., 39AD3d 697, 698 [2007]; see also King v Mitchell, 31 AD3d 958, 959 [2006]).
Good Samaritan established its prima facie entitlement to judgment as a matter of law bysubmitting evidence that Boltin was not a Good Samaritan employee (see Dragotta vSouthampton Hosp., 39 AD3d 697, 699 [2007]; see also Sita v Long Is. Jewish-HillsideMed. Ctr., 22 AD3d 743 [2005]). In opposition, the plaintiffs failed to raise a triable issue offact as to whether Good Samaritan may be held vicariously liable for Boltin's alleged malpracticeunder the doctrine of apparent or ostensible agency. The evidence submitted in opposition to themotion, including the plaintiff mother's affidavit, was insufficient to show that the plaintiffs'perception of Boltin's employment status was based on any words or actions on the part of GoodSamaritan, or that the plaintiffs relied upon the perceived association between Boltin and GoodSamaritan in seeking Boltin's services (see Schultz v Shreedhar, 66 AD3d 666 [2009];Thurman v United Health Servs. Hosps., Inc., 39 AD3d 934, 935-936 [2007]; King vMitchell, 31 AD3d 958, 959-960 [2006]; Bevelacqua v Yonkers Gen. Hosp., 10AD3d 668 [2004]). Accordingly, the Supreme Court should have granted that branch of GoodSamaritan's motion which was for summary judgment dismissing the claim that it wasvicariously liable for Boltin's alleged malpractice. Skelos, J.P., Eng, Hall and Lott, JJ., concur.