| Friedland v Vassar Bros. Med. Ctr. |
| 2014 NY Slip Op 05388 [119 AD3d 1183] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Ann Paula Friedland, as Administrator of the Estate ofJack Friedland, Deceased, Respondent, v Vassar Brothers Medical Center,Appellant. |
Phelan Phelan & Danek, LLP, Albany (Stanley J. Tartaglia Jr. of counsel), forappellant.
Goldstein & Goldstein, LLP, Poughkeepsie (Paul J. Goldstein of counsel), forrespondent.
Peters, P.J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered April23, 2013 in Ulster County, which denied defendant's motion for summary judgmentdismissing the complaint.
This medical malpractice action arises out of the death of plaintiff's husband, JackFriedland (hereinafter decedent), at defendant's hospital. On the morning of May 6, 2007,decedent woke plaintiff shivering uncontrollably and complaining of pain in his lowerback. Plaintiff called for an ambulance and requested that decedent be taken todefendant's emergency room. Upon arrival, decedent came under the care of emergencyroom medical director Craig van Roekens. Believing decedent to be experiencing a heartattack, van Roekens immediately activated defendant's cardiac catheterization team. VanRoekens then contacted cardiac interventionalist Zubair Jafar and cardiologist GaryNathanson. Nathanson examined decedent briefly in the catheterization lab as Jafar andhis team prepared for the procedure. Jafar successfully cleared an occlusion in decedent'sright coronary artery, but decedent continued to exhibit signs of distress. After conferringwith Jafar, Nathanson contacted intensivist Michael Dempsey, who admitted decedent tothe intensive care unit (hereinafter ICU). Dempsey, whose differential diagnosis includedsepsis and a possible perforated bowel, ordered various tests, including a CT scan ofdecedent's abdomen. The CT scan, once completed, revealed a likely [*2]perforation in decedent's intestinal tract. More than 15hours after decedent first arrived at the hospital, surgeon Rubin Delgado began anemergency laparotomy—a surgical exploration of decedent's abdominalcavity—in the hopes of locating and repairing the perforation. The surgery lastedfour hours. Decedent succumbed to severe septic shock several hours later.
Plaintiff subsequently commenced this action alleging, among other things, that vanRoekens, Nathanson, Dempsey and others failed to timely order, perform and read theabdominal CT scan, which prevented the prompt diagnosis of decedent's abdominalpuncture as the source of his sepsis and ultimately led to his death. Following joinder ofissue and discovery, defendant moved for summary judgment dismissing the complaint.Supreme Court denied the motion, and this appeal ensued.
Under settled law, a hospital ordinarily may not be held liable for the negligent actsof treating physicians who are not hospital employees (see Hill v St. Clare'sHosp., 67 NY2d 72, 79 [1986]; Brink v Muller, 86 AD3d 894, 895-896 [2011]; Thurman v United Health Servs.Hosps., Inc., 39 AD3d 934, 935 [2007], lv denied 9 NY3d 807 [2007]).Vicarious liability for malpractice on the part of nonemployee physicians may beimposed, however, on a theory of ostensible or apparent agency (see Hill v St. Clare'sHosp., 67 NY2d at 79; St.Andrews v Scalia, 51 AD3d 1260, 1261-1262 [2008]; Monostori v Murphy, 34 AD3d882, 883 [2006]). " 'Essential to the creation of apparent authority are wordsor conduct of the principal, communicated to a third party, that give rise to theappearance and belief that the agent possesses authority' to act on behalf of the principal"(Searle v Cayuga Med. Ctr. atIthaca, 28 AD3d 834, 836 [2006], quoting Hallock v State of New York,64 NY2d 224, 231 [1984]; see St. Andrews v Scalia, 51 AD3d at 1261-1262;Thurman v United Health Servs. Hosps., Inc., 39 AD3d at 935-936; King v Mitchell, 31 AD3d958, 960 [2006]). Consequently, "a hospital may [face vicarious liability] for the actsof independent physicians if the patient enters the hospital through the emergency roomand seeks treatment from the hospital, not from a particular physician" (Citron vNorthern Dutchess Hosp., 198 AD2d 618, 620 [1993], lv denied 83 NY2d753 [1994]; accord St. Andrews v Scalia, 51 AD3d at 1262; see Brink vMuller, 86 AD3d at 896).
Here, none of decedent's treating physicians were hospital employees. Thus, as theproponent of the motion for summary judgment, defendant bore the initial burden ofestablishing that decedent sought care from a specific physician rather than fromdefendant generally (see St. Andrews v Scalia, 51 AD3d at 1262; Payant vImobersteg, 256 AD2d 702, 703-704 [1998]). In support, defendant argues primarilythat decedent's care was assumed and directed by Nathanson, an employee of decedent'sprimary care group, and thus that decedent could not reasonably have believed histreating physicians were acting on defendant's behalf. Defendant's own submissions,however, belie this claim. Decedent arrived at defendant's emergency room shortly after8:30 a.m. After taking initial steps to stabilize decedent, van Roekens activated thecardiac catheterization team, contacted Jafar and Nathanson and transferred decedent tothe catheterization lab for further treatment. Nathanson testified that he had encountereddecedent for the first time in the catheterization lab immediately prior to thecatheterization procedure. While Nathanson testified that he had told decedent he wasemployed by decedent's primary care group, the record as a whole establishes thatNathanson's role in decedent's course of treatment was limited. It was van Roekens, notNathanson, who activated the catheterization team and contacted cardiac interventionalistJafar. Defendant's records indicate that Jafar, not Nathanson, was decedent's admittingphysician, and that it was Jafar who stented decedent's occluded coronary artery.Although Nathanson, "hoping to be helpful," attempted to obtain decedent's consent tothe catheterization, the record indicates that decedent told Nathanson to "go ask[*3][plaintiff]."
Plaintiff ultimately signed a consent form—on defendant's letterhead (seeMonostori v Murphy, 34 AD3d at 883; Torns v Samaritan Hosp., 305 AD2d965, 967 [2003])—authorizing Jafar, not Nathanson, to perform thecatheterization. Nathanson further testified that he had conferred with Jafar after thecatheterization procedure, and that he and Jafar agreed, in light of decedent'sdeteriorating condition, to transfer him to the ICU. Notably, Nathanson testified that hehad no further contact with decedent after delivering him into Dempsey's care, and that itwas Dempsey who admitted decedent to the ICU. Nothing in the record indicates thatNathanson ordered or performed tests during decedent's hospitalization or otherwiseassumed responsibility for his care (compare Thurman v United Health Servs. Hosps.,Inc., 39 AD3d at 936-937). In light of the foregoing, defendant failed to make out aprima facie case that decedent "could not have reasonably believed that he was receivingmedical care from the hospital in general rather than from a particular physician"(Thurman v United Health Servs. Hosps., Inc., 39 AD3d at 937; see St.Andrews v Scalia, 51 AD3d at 1262-1263; Monostori v Murphy, 34 AD3d at883; cf. Hickey v Arnot-OgdenMed. Ctr., 79 AD3d 1400, 1401-1402 [2010]; compare Schultz v Shreedhar,66 AD3d 666, 666-667 [2009]).
Defendant argues alternatively that, irrespective of any potential vicarious liability onits part, decedent's attending physicians committed no malpractice. Again, defendant borethe initial burden of establishing that decedent's treatment fell within accepted standardsof care, or that any departure from such standards was not a proximate cause ofdecedent's injuries (see Cole vChamplain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285-1286[2014]; Olinsky-Paul vJaffe, 105 AD3d 1181, 1182 [2013]; LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97AD3d 1060, 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]). In supportof its motion, defendant submitted, among other things, the affirmation of board-certifiedpulmonologist and critical care physician Scott Beegle. Noting that physical examinationand other test results—including an abdominal X ray—initially suggestedthat decedent was not suffering from an intestinal perforation, Beegle opined thatDempsey's decision to order a non-STAT CT scan comported with the accepted standardof care. Beegle further noted that decedent's deteriorating physical condition requiredthat he be stabilized before the scan could be performed, and that such stabilization, too,complied with the accepted standard of care. Accordingly, the burden shifted to plaintiff"to establish, through competent expert medical opinion evidence, that there exists atriable issue of fact as to whether there was a deviation from the accepted standard ofcare and whether there exists a causal nexus between that deviation and [decedent's]injuries" (Helfer v Chapin,96 AD3d 1270, 1272 [2012]; see Longtemps v Oliva, 110 AD3d 1316, 1318 [2013];Derusha v Sellig, 92 AD3d at 1194).
To this end, plaintiff submitted a responsive affirmation from board-certified surgeonThomas Hamilton Gouge, who opined that decedent's treating physicians departed fromaccepted standards of care both by failing to timely diagnose decedent's intestinalperforation and by failing to timely operate to find and repair the perforation. Regardingthe necessity of the CT scan itself, Gouge noted that an abdominal X ray is "not adefinitive enough test" to exclude an intestinal perforation, and that an abdominal CTscan was the most efficacious diagnostic device under the circumstances—asentiment notably echoed by Dempsey in his deposition testimony. Gouge further opinedthat, in light of decedent's clinical presentation upon arrival at the ICU, the applicablestandard of care required that a CT scan of his abdomen be immediately performed.According to Gouge, decedent's physical condition should not have delayed performanceof the scan. Gouge also affirmed that decedent was stable enough to have undergoneabdominal [*4]surgery much earlier in the day, and thatthe unnecessary delay in identifying and repairing the intestinal perforation led todecedent's untimely demise. Viewing the evidence in a light most favorable to plaintiff,we conclude that Gouge's affirmation was sufficient to raise triable issues of fact withregard to the timeliness of the CT scan and ensuing surgical intervention (see Cole vChamplain Val. Physicians' Hosp. Med. Ctr., 116 AD3d at 1287-1288;Longtemps v Oliva, 110 AD3d at 1318; Derusha v Sellig, 92 AD3d at1194). Accordingly, this branch of defendant's summary judgment motion was alsoproperly denied.
To the extent that defendant argues that plaintiff's allegations of negligence exceedthose contained in her bill of particulars as amended, defendant waived this argument byfailing to make it before Supreme Court (see CPLR 5501 [a] [3]; Congleton v United Health Servs.Hosps., 67 AD3d 1148, 1149-1150 [2009]; Goodspeed v Adirondack Med. Ctr., 43 AD3d 597, 598[2007]). In any event, plaintiff's second amended bill of particulars provided defendantadequate notice of her theory of negligence (see CPLR 3043 [a] [3]; Citron vNorthern Dutchess Hosp., 198 AD2d at 619; see also Hudson v Lansingburgh Cent. School Dist., 27 AD3d1027, 1029 [2006]; compare Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487,489 [2011]).
Garry, Rose, Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.