| Loaiza v Lam |
| 2013 NY Slip Op 04780 [107 AD3d 951] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Mateo Loaiza et al., Appellants, v Henry Lam,Defendant, and Flushing Hospital Medical Center,Respondent. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg and KennethR. Larywon of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, QueensCounty (O'Donoghue, J.), entered July 27, 2011, as granted that branch of the motion ofthe defendant Flushing Hospital Medical Center which was for summary judgmentdismissing the cause of action to recover damages for medical malpractice insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendant Flushing Hospital Medical Center whichwas for summary judgment dismissing the cause of action to recover damages formedical malpractice insofar as asserted against it is denied.
The plaintiff Claudia M. Loaiza (hereinafter Loaiza) gave birth to the infant plaintiffat the defendant Flushing Hospital Medical Center (hereinafter FHMC). The defendantHenry Lam was the attending physician who delivered the infant plaintiff. Loaizarequested to have a vaginal delivery, despite allegedly being advised by Lam and twoother physicians to have a cesarean section due to her weight, the estimated fetal weightof the infant plaintiff, and a prior shoulder dystocia during the birth of her older son.When a shoulder dystocia was in fact encountered during the delivery of the infantplaintiff, Lam completed a series of obstetrical maneuvers to dislodge the infantplaintiff's shoulder, resulting in his delivery. The infant plaintiff suffers from Erb's palsy,allegedly as a result of medical malpractice committed during his delivery.
The Supreme Court erred in granting that branch of FHMC's motion which was forsummary judgment dismissing the medical malpractice cause of action insofar as assertedagainst it. FHMC established its prima facie entitlement to judgment as a matter of lawby showing that while Lam worked solely at FHMC, he was not an employee of FHMC.He was employed by a different entity, TJH Medical Services, P.C. However, inopposition, the plaintiffs raised triable [*2]issues of factas to whether FHMC may be vicariously liable for Lam's alleged malpractice under atheory of apparent or ostensible agency (see Sampson v Contillo, 55 AD3d 588, 590-591 [2008]; Dragotta v SouthamptonHosp., 39 AD3d 697, 698 [2007]). "A hospital [is] responsible to a patient whosought medical care at the hospital, . . . rather than from any particularphysician although the physician whose malpractice caused injury to the patient was notan employee of the hospital" (Hill v St. Clare's Hosp., 67 NY2d 72, 80-81[1986]; see Keitel v Kurtz,54 AD3d 387, 390 [2008]; Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d393 [2005]). To create an apparent or ostensible agency, the plaintiff mustreasonably rely on the appearance of authority, based on some misleading words orconduct by the principal, not the agent. Moreover, the plaintiff must accept the servicesof the agent in reliance upon the perceived relationship between the agent and theprincipal, and not on reliance on the agent's skill (see Sullivan v Sirop, 74 AD3d 1326, 1328 [2010];Sampson v Contillo, 55 AD3d at 590). In the context of a medical malpracticeaction, the patient must have reasonably believed that the physicians treating her wereprovided by the hospital or acted on the hospital's behalf (see Sampson vContillo, 55 AD3d at 590; Dragotta v Southampton Hosp., 39 AD3d at698-699). In evaluating whether a doctor is the apparent agent of a hospital, a courtshould consider all attendant circumstances to determine whether the patient couldproperly have believed that the physician was provided by the hospital (see Sampsonv Contillo, 55 AD3d at 590; Contu v Albert, 18 AD3d 692 [2005]; Augeri vMassoff, 134 AD2d 308 [1987]).
Here, the record shows that Loaiza did not have a private obstetrician. She came toFHMC for her prenatal treatment, and was seen by a different doctor on each visit. Whenshe arrived at FHMC on December 11, 2007, in labor, she was seeking care from thehospital rather than from any particular physician. She did not even know who Lam was.She was not referred to FHMC or advised or directed to go there by Lam, and did notrequest to be treated by him (see Finnin v St. Barnabas Hosp., 306 AD2d 189[2003]; cf. Gardner v BrookdaleHosp. Med. Ctr., 73 AD3d 1124 [2010]; Schultz v Shreedhar, 66 AD3d 666 [2009]; Christopherson v Queens-Long Is.Med. Group, P.C., 17 AD3d 393 [2005]). FHMC residents called Lam. Lamwas assigned by FHMC as Loaiza's attending physician (see Keitel v Kurtz, 54AD3d at 390-391). Under these circumstances, Loaiza could properly have believed thatLam was provided by FHMC. In her affidavit, Loaiza averred that as far as sheunderstood, the doctors who examined her and delivered the infant plaintiff wereassigned to her and were employed by the hospital. Triable issues of fact exist as towhether FHMC can be held vicariously liable, under a theory of apparent or ostensibleagency, for malpractice, if any, committed by Lam.
Furthermore, while FHMC established, prima facie, through the affirmation of itsexpert, Dr. Barry Kramer, that neither Lam nor Dr. Anghel, the resident who examinedLoaiza upon her presentation to labor and delivery, committed malpractice, the plaintiffsraised triable issues of fact through their expert affirmations as to whether Lam orAnghel departed from good and accepted standards of medical practice, and, if so,whether such departure proximately caused the infant plaintiff's injuries (see Stukas v Streiter, 83 AD3d18 [2011]; Ortaglia vScanlon, 35 AD3d 421 [2006]; Calabro v Hescheles, 22 AD3d 622 [2005]). Where partiesto a medical malpractice action offer conflicting expert opinions, issues of credibilityarise requiring jury resolution (see Martin v Siegenfeld, 70 AD3d 786 [2010]; Dandrea v Hertz, 23 AD3d332 [2005]; Shields vBaktidy, 11 AD3d 671 [2004]). The opinions of the plaintiffs' experts conflictedwith the opinion of FHMC's expert on issues such as whether improper force was placedon the infant plaintiff by Lam during delivery, and whether a cesarean section shouldhave been performed (seeMartin v Siegenfeld, 70 AD3d 786 [2010]). Accordingly, the Supreme Courtshould have denied that branch of FHMC's motion which was for summary judgmentdismissing the cause of action to recover damages for medical malpractice insofar asasserted against it. Mastro, J.P., Hall, Sgroi and Cohen, JJ., concur.