| Muslim v Horizon Med. Group, P.C. |
| 2014 NY Slip Op 03991 [118 AD3d 681] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| Elianna Muslim, an Infant, by Her Mother and NaturalGuardian, Vanessa Muslim, et al., Appellants, v Horizon Medical Group, P.C.,et al., Defendants, and St. Anthony's Community Hospital,Respondent. |
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly,Eugene S. R. Pagano, Mitchell Gittin, and John J. Leen of counsel), for appellants.
Morelli Gerrard & Lassalle, LLP, New York, N.Y. (Doralba Lassalle ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal from an order of the Supreme Court, Orange County (Ecker, J.), dated March 26,2012, which granted the motion of the defendant St. Anthony's Community Hospital forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
At issue here is whether the defendant St. Anthony's Community Hospital(hereinafter the hospital) is vicariously liable for the alleged medical malpractice of thedefendant Dominic Berlingieri, a pediatrician who practices medicine under the nameWarwick Pediatrics, P.C. (hereinafter Warwick).
Several weeks prior to August 29, 2008, the plaintiff Vanessa Muslim (hereinafterVanessa), who was pregnant, received several forms in the mail from the hospital,including a "Pre-Admission Obstetrical Assessment" form, which, in relevant part,requested her to put a check mark next to one of two identified private pediatricspractices—Warwick or Chester Pediatrics, LLP (hereinafter Chester)—totreat her child immediately after the upcoming birth. Vanessa recalled at her depositionthat she had selected Warwick and someone with a name similar to Berlingieri. In theearly morning hours of August 29, 2008, Vanessa began to experience abdominal pains,and called her private obstetrician, the defendant Alex Joanow, who told her to go to thelabor and delivery unit at the hospital. After Vanessa and her mother arrived at thehospital at approximately 4:45 a.m., Vanessa's mother signed a "Consent for Treatment"form as Vanessa's "representative." The form stated, in relevant part: "I authorize [thehospital], through its medical staff, to provide me and/or my minor dependents medicalcare encompassing routine laboratory diagnostic or medical/surgical treatment."
Joanow arrived at the hospital at approximately 5:30 a.m. on August 29, 2008, and[*2]immediately assembled a team of physicians andnurses to attend to Vanessa. Berlingieri was a part of the team assembled in the deliveryroom. The hospital considered Berlingieri to be a private attending physician, and did notbill Vanessa for the services he rendered. Berlingieri claimed that he and the physicianwho practiced under the name Chester shared the "on call" schedule for the hospital'spediatrics unit, and were the only pediatricians with privileges at the hospital. WhenBerlingieri rendered services as the on-call pediatrician, he received payment directlyfrom the person responsible for any infant patient's medical care or that person's insurer,and not from the hospital. Berlingieri testified at his deposition that, as far as he wasaware, the hospital did not have any pediatricians on staff.
In support of its motion for summary judgment dismissing the complaint insofar asasserted against it, the hospital contended that it could not be held vicariously liable forthe treatment rendered by Berlingieri to Vanessa and her daughter, the infant plaintiffElianna Muslim. In the order appealed from, the Supreme Court granted the hospital'smotion for summary judgment, concluding that the hospital established, prima facie, thatBerlingieri was not its employee, and that the plaintiffs failed to raise a triable issue offact as to whether they relied upon a perceived employment relationship betweenBerlingieri and the hospital in seeking his services.
"In general, a hospital may not be held vicariously liable for the malpractice of aprivate attending physician who is not an employee" (Toth v Bloshinsky, 39 AD3d 848, 849 [2007]; see Corletta v Fischer, 101AD3d 929, 930 [2012]). An exception to this general rule exists where a plaintiffseeks to hold a hospital vicariously liable for the alleged malpractice of an attendingphysician who is not its employee where "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 AD3d770, 770-771 [2004]; see Mduba v Benedictine Hosp., 52 AD2d 450[1976]). Thus, in order to establish its entitlement to judgment as a matter of lawdefeating a claim of vicarious liability, a hospital must demonstrate that the physicianalleged to have committed the malpractice "was an independent contractor and not ahospital employee" (Alvarado vBeth Israel Med. Ctr., 78 AD3d 873, 875 [2010]), and that "the exception to thegeneral rule did not apply" (Rizzo v Staten Is. Univ. Hosp., 29 AD3d 668, 668-669[2006]; see Corletta vFischer, 101 AD3d 929 [2012]). In this case, the hospital met that burden bydemonstrating that Berlingieri was not a hospital employee, and that Vanessa soughttreatment from a particular physician, Joanow, went to the hospital at Joanow's direction,and was in fact treated by Joanow and a medical team that he assembled shortly after heradmission (see Gardner vBrookdale Hosp. Med. Ctr., 73 AD3d 1124 [2010]; Bevelacqua v Yonkers Gen.Hosp., 10 AD3d 668 [2004]).
A plaintiff may rebut a hospital's prima facie showing by raising a triable issue offact as to whether the hospital can be held vicariously liable for the malpractice of anattending physician who is not under its employ pursuant to a theory of "apparent orostensible agency" (Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). To supporta viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient tosupport the conclusion that the hospital engaged in some misleading conduct upon whichthe plaintiff reasonably relied when the plaintiff decided to accept medical services fromthe hospital (see King vMitchell, 31 AD3d 958, 959 [2006]). There is no evidence that Vanessa wasmisled by the hospital into believing that Berlingieri was a member of its staff, and therecord does not reflect any other allegation by Vanessa that she believed there to be anemployment relationship between Berlingieri and the hospital, and that she thereuponaccepted his services in reliance upon such a relationship (see Dragotta v SouthamptonHosp., 39 AD3d 697, 698-699 [2007]). The evidence that, contrary to Vanessa'srecollection, she had not in fact selected Berlingieri as a pediatrician and that her mother,as her patient representative, had signed a consent form authorizing treatment from thehospital's "medical staff" was insufficient to raise a triable issue of fact with respect tothis issue (see King v Mitchell, 31 AD3d at 959).
The plaintiffs' remaining contention is not properly before this Court.
Accordingly, the Supreme Court properly granted the hospital's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Mastro, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.