| Brink v Muller |
| 2011 NY Slip Op 06067 [86 AD3d 894] |
| July 28, 2011 |
| Appellate Division, Third Department |
| Stella Brink, Respondent, v Reid T. Muller et al.,Defendants, and Community Memorial Hospital, Inc., Appellant. |
—[*1] DeFrancisco & Falgiatano, Syracuse (Charles L. Falgiatano of counsel), forrespondent.
Egan Jr., J. Appeal from that part of an order of the Supreme Court (Cerio, Jr., J.), enteredApril 19, 2010 in Madison County, which denied a motion by defendant Community MemorialHospital, Inc. to limit plaintiff's proof at trial regarding said defendant's liability for the opinionrendered by a certain consulting physician.
In October 2004, plaintiff presented at the emergency room of defendant CommunityMemorial Hospital, Inc. (hereinafter defendant) in the Town of Hamilton, Madison County, withsymptoms consistent with a stroke. Following an initial evaluation by a registered physician'sassistant, plaintiff was sent for a CAT scan and Ellen Larson, the "on call" physician, wascontacted. Larson, a family practitioner at Bassett Hospital in the Village of Cooperstown,Otsego County, was not employed by defendant but had been granted staff privileges at thefacility, which required her to participate in defendant's emergency room on-call program.
During the course of plaintiff's treatment, a question arose as to whether she should be givena tissue plasinogen activator (hereinafter TPA), otherwise known as a clot buster. As [*2]defendant, a small community hospital, apparently did not have aneurologist on call, Larson telephoned Michael Miller, the on-call neurologist at BassettHospital, who advised against the administration of TPA.[FN1] Upon informing plaintiff's daughter of Miller's assessment, the daughter, who was a resident atSt. Joseph's Hospital in the City of Syracuse, Onondaga County, asked Larson to contact thatfacility for a second opinion. Larson then spoke with Hassan Shukri, the on-call neurologist at St.Joseph's, who agreed that TPA should not be given to plaintiff.
Although plaintiff evidenced significant improvement following her initial admission, hercondition thereafter deteriorated and she apparently suffered a second and allegedly debilitatingstroke the following day, prompting her to commence this medical malpractice action against,among others, defendant.[FN2] The matter proceeded to trial in December 2009 and, prior to the testimony of plaintiff's expertwitness, defendant sought a ruling that it was not liable for the opinions provided by Miller andShukri during the course of Larson's treatment of plaintiff. The trial was adjourned and,following a hearing on defendant's subsequent motion in limine, Supreme Court granted themotion as to Shukri but denied the motion as to Miller, finding that the record presented aquestion of fact as to whether defendant could be held vicariously liable for Miller's advice.Defendant now appeals from that part of Supreme Court's order denying the requested relief as toMiller.
The crux of the issue on appeal is whether defendant may be held liable for the allegedlynegligent opinion rendered by Miller regarding the advisability of administering TPA to plaintiff.For the reasons that follow, we agree with Supreme Court that the extent of defendant's liability,if any, cannot be definitively resolved on the scant record before us and, accordingly, defendant'smotion in limine was properly denied.
As a general proposition, "a hospital may not be held liable for the malpractice of a physicianwho is not [its] employee" (Citron v Northern Dutchess Hosp., 198 AD2d 618, 620[1993], lv denied 83 NY2d 753 [1994]; see Hill v St. Clare's Hosp., 67 NY2d 72,79 [1986]; Thurman v United HealthServs. Hosps., Inc., 39 AD3d 934, 935 [2007], lv denied 9 NY3d 807 [2007]).However, an exception to this general rule exists where a patient comes into a hospitalemergency room seeking treatment from the hospital itself rather than a physician of the patient'sown choosing (see Schultz vShreedhar, 66 AD3d 666, 666 [2009]; Sampson v Contillo, 55 AD3d 588, 589 [2008]; St. Andrews v Scalia, 51 AD3d1260, 1261 [2008]; Citron v Northern Dutchess Hosp., 198 AD2d at 620; Mdubav Benedictine Hosp., 52 AD2d 450, 453 [1976]), in which case liability may be imposedunder an apparent or ostensible agency theory. "Essential to the creation of apparent [agency] arewords or conduct of the principal, communicated to a third party, that give rise to the appearanceand belief that the agent possesses authority to act on [*3]behalfof the principal" (Searle v Cayuga Med.Ctr. at Ithaca, 28 AD3d 834, 836 [2006] [internal quotation marks and citation omitted];see Sampson v Contillo, 55 AD3d at 590; St. Andrews v Scalia, 51 AD3d at1261-1262; Thurman v United Health Servs. Hosps., Inc., 39 AD3d at 935-936; King v Mitchell, 31 AD3d 958,959 [2006]). Specifically, "[i]n the context of a medical malpractice action, the patient must havereasonably believed that the physicians treating him or her were provided by the hospital or actedon the hospital's behalf" (Dragotta vSouthampton Hosp., 39 AD3d 697, 699 [2007]; see Sampson v Contillo, 55AD3d at 590) and, further, must have accepted the physicians' services in reliance not upon theirparticular skill but, rather, based upon their relationship with the underlying hospital (seeSearle v Cayuga Med. Ctr. at Ithaca, 28 AD3d at 836). In assessing the reasonableness ofsuch a belief, we must consider "all [the] attendant circumstances" (Sampson v Contillo,55 AD3d at 590 [internal quotation marks omitted]).
Applying these principles to the matter before us, we are persuaded that the record as a wholepresents a question of fact as to whether defendant may be held vicariously liable for Miller'salleged negligence.[FN3] In this regard, defendant correctly notes that there is evidence in the record that militates againstsuch a finding, including the fact that Miller was not present in the emergency room at the timeof plaintiff's admission, did not personally examine her and, apparently, only consulted withLarson briefly via telephone from another hospital.[FN4] On this latter point, it is clear that Larson contacted Miller pursuant to her own "defaultprotocol," a procedure via which she would reach out to a specialist at Bassett Hospital if sheneeded advice.[FN5] What is not clear, however, is whether plaintiff's daughter[FN6] was aware of the actual relationship (or the alleged lack thereof) between Miller and defendant.Absent more detailed testimony in this regard, we are unable to ascertain whether, based upondue consideration of all the relevant circumstances then existing, plaintiff's daughter reasonablycould have believed that Miller had been furnished by defendant or was acting on defendant'sbehalf.
In so holding, we recognize that plaintiff's daughter indeed was advised by Larson that Millerhad been contacted at Bassett Hospital, but this only begs the question ofwhether—notwithstanding that disclosure—it was reasonable for her to infer that hehad been consulted at defendant's behest or otherwise was acting on its behalf. Further, while weacknowledge that defendant was not "obligated to affirmatively disclaim [Miller] as an employeein order to avoid [*4]the creation of ostensible agency" (Kingv Mitchell, 31 AD3d at 960; accord Thurman v United Health Servs. Hosps., Inc., 39AD3d at 936), we nonetheless are persuaded that a question of fact remains regarding whetherplaintiff or her daughter reasonably could have believed that Miller was acting on defendant'sbehalf and reasonably relied upon such belief when accepting services from defendant.Accordingly, defendant's motion was properly denied (cf. St. Andrews v Scalia, 51 AD3dat 1262-1263; Monostori v Murphy,34 AD3d 882, 883-884 [2006]; Lewis v Manis, 266 AD2d 844, 845 [1999]).
As a final matter, our decision in this regard should in no way be construed as standing forthe proposition that any sort of telephone consultation between colleagues in an emergency roomsetting necessarily exposes the admitting hospital to vicarious liability for any opinion renderedby the physician so consulted. To the contrary, our holding here simply reflects the sparse recordbefore us and the corresponding questions of fact it presents.
Mercure, J.P., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Miller was not employed bydefendant and was contacted by Larson based upon her personal "default protocol," whereby shewould reach out to physicians at Bassett Hospital when she was in need of advice.
Footnote 2: Plaintiff also commenced thisaction against defendants Reid T. Muller, her treating cardiologist, and SJH CardiologyAssociates, P.C., but thereafter executed a stipulation of discontinuance as to them.
Footnote 3: Defendant does not dispute thatit is responsible for Larson's actions.
Footnote 4: Larson also testified that, to herknowledge, Miller did not have staff privileges with defendant.
Footnote 5: Larson testified that defendantnever instructed her as to how she should proceed in the event that a need for a consult arose and,to her knowledge, did not have an established on-call consultation policy or any arrangementwith Bassett Hospital for that purpose.
Footnote 6: It appears that plaintiff wasincapacitated at this point in time and, therefore, it was her daughter (and the apparent holder ofher healthcare proxy) with whom Larson shared Miller's opinion regarding the administration ofTPA.