Nagengast v. Samaritan Hospital

Jan 5, 1995
Versions:211 A.D.2d 878
621 N.Y.S.2d 217
1995 N.Y. App. Div. LEXIS 19
Peters, J.

Aрpeal from an order of the Supreme Court (Spain, J.), entered March 4, 1994 in Rensselaer County, which denied defendant Samaritan Hospital’s motion fоr summary judgment dismissing the complaint and all cross claims against it.

In June 1986, Mary Nagengast (hereinafter Nagengast) underwent surgery for bladder cancer. After the surgеry, her attending physician, defendant Anthony V. Passaretti, referred her to defendant K. Venkat Reddy for radiation therapy. In August 1986, Reddy saw Nagengast at his office located at defendant Samaritan Hospital and prescribed a course of radiation treatment. Nagengast subsequently received radiation therapy at Samaritan Hospital between August 18, 1986 and October 1, 1986 under Reddy’s direction.

After the completion of radiation therapy, Nagеngast experienced side effects which included diarrhea, vomiting and bleeding. She was hospitalized on numerous occasions and in November 1989 shе, along with her husband, commenced the instant medical malpractice action against various doctors as well as Samaritan Hospital.1 After issue was joined, Samaritan Hospital moved for summary judgment dismissing the complaint ‍‌‌‌​​‌‌​​‌‌‌‌​​‌​​​​‌‌​‌​‌‌​​​​‌‌​‌​‌‌‌​‌​‌‌‌‌​​‍and all cross claims against it. The motion was denied and Samaritan Hospital appeals.

Addressing first the issue of vicarious liability, it is well settled that a hospital may be held vicariously liable for the negligence or malprаctice of physicians who act in its employ or as its agent but not for such conduct by private physicians independently retained by the patiеnt (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 79; Fiorentino v Wenger, 19 NY2d 407, 414; Sarivola v Brookdale Hosp. & Med. Ctr., 204 AD2d 245, 246; Georges v Swift, 194 AD2d 517; Sledziewski v Cioffi, 137 AD2d 186, 188). The premise for imputing liability is the *879notion of control (see, Kavanaugh v Nussbaum, 71 NY2d 535, 547; Pace v Unity House, 167 AD2d 739, 740; Sledziewski v Cioffi, supra, at 188). Hence, the fact that doctors are affiliated with a hospital and have been granted admitting privileges has been held insufficient to impоse vicarious liability on the hospital (see, Hill v St. Clare’s Hosp., supra; Tuzeo v Hegde, 172 AD2d 747; Hicks v Fraser Clinic, 169 AD2d 558). Yet, where a hospital maintains control over the manner and means of a doctor’s work through the oрeration of an emergency room and the patient seeks medical care from the hospital instead of a particular doctor, courts have held the hospital vicariously liable for a doctor’s malpractice regardless of the fact that the doctor is an independent contractor (see, Noble v Porter, 188 AD2d 1066; Casucci v Kenmore Mercy Hosp., 144 AD2d 910; Augeri v Massoff, 134 AD2d 308; Mduba v Benedictine Hosp., 52 AD2d 450; cf., Campbell v Stevens Hosp., 118 AD2d 988, lv denied 68 NY2d 604).

Here, it is undisputed that Nagengast was specifically referred to Reddy for radiation therapy by her urologist, Passaretti, аnd that Nagengast independently retained Reddy for such purposes. Further, Reddy was not employed by Samaritan Hospital during the relevant period of time, but rather maintained privileges and affiliations with not only Samaritan Hospital, ‍‌‌‌​​‌‌​​‌‌‌‌​​‌​​​​‌‌​‌​‌‌​​​​‌‌​‌​‌‌‌​‌​‌‌‌‌​​‍but also other area hospitals. Under these circumstances, Reddy was acting as an independent physician who had been specifically retained by Nagengast. Plaintiff has failed to present sufficient facts and admissible evidence to establish the necessary element of control. We therefore find no basis for imposing vicarious liability upon Samaritan Hospital.2

Addressing plaintiff’s claim that Samaritan Hospital clothed Reddy with "apparent or ostensible authority to act on its behalf’, we note thаt Samaritan Hospital correctly asserts that plaintiff did not adequately raise this issue below. However, we note parenthetically that regаrdless of Reddy’s title of "associated attending physician” while at Samaritan Hospital and his use of Samaritan Hospital’s stationary, such acts do not establish that Samaritan Hospital retained the-requisite control over Reddy’s activities to justify the imposition of vicarious liability on this theory. Moreоver, unlike Casucci v *880Kenmore Mercy Hosp. (supra), Augeri v Massoff (supra) and Mduba v Benedictine Hosp. (supra), upon which plaintiff relies, the patient here did not seek treatment from the hospital as a medical institution but rather sought treatment from a particular doctor based upon a referral. Further, we note that the record is bereft of evidence to show that representatiоns were made by Samaritan Hospital that Reddy was its employee and that, by reason of such representations, Nagengast submitted herself to his cаre and treatment. Such proof has been found to be essential for vicarious liability to apply (see, Hill v St. Clare’s Hosp., supra, at 79-81).

Samaritan Hospital further seeks the dismissal of plaintiffs claims of negligence based upon its alleged failure to properly diagnose and treat Nagengast and its failure to obtain her informed consent. Again, we note that "a hospital is protected from tort liability, when its professional staff follows the orders of private physicians selected by the patient” (Pollicina v Misericordia Hosp. Med. Ctr., 158 AD2d 194, 198, lv dismissed 76 NY2d 934; see, Toth v Community Hosp., 22 NY2d 255; Hering v McShane, 145 AD2d 683). The only recognized exception is " 'where the hospital staff knows that the doctor’s orders are so clearly contraindicated ‍‌‌‌​​‌‌​​‌‌‌‌​​‌​​​​‌‌​‌​‌‌​​​​‌‌​‌​‌‌‌​‌​‌‌‌‌​​‍by normal practice that ordinary prudence requires inquiry into the correctness of the orders’ ” (Pollicina v Misericordia Hosp. Med. Ctr., supra, at 199, quoting Toth v Community Hosp., supra, at 265, n 3). Hence, under such cirсumstances, the hospital would have a duty to intervene.

Here, Samaritan Hospital submitted a physician’s affidavit attesting to the fact that the prеscription and diagnosis of radiation treatment was not within the expertise of radiation technicians employed by Samaritan Hospital and that they treated Nagengast in accordance with the directives of her private physician. Moreover, sufficient evidence was presеnted indicating that there was no clear evidence of malpractice in Reddy’s orders warranting intervention by the hospital staff. Affidavits submitted on this issue were consistent with the testimony that the adverse side effects experienced by Nagengast were associated with radiation treatment and nоt necessarily indicative of improper treatment.

Although Supreme Court found Samaritan Hospital to have met its prima facie burden, thereаfter overcome by plaintiffs submission of a physician’s affidavit, we find that such affidavit fails to demonstrate that the course of treatment recommеnded was so contraindicated by normal practice that the hospital staff would therefore have a duty to intervene. We *881note that plaintiffs expert opinion was based upon Nagengast’s unique internal condition which was due to pelvic surgery performed over 15 years earlier аnd the ‍‌‌‌​​‌‌​​‌‌‌‌​​‌​​​​‌‌​‌​‌‌​​​​‌‌​‌​‌‌‌​‌​‌‌‌‌​​‍elongated shape of her bladder. There is absolutely no proof in the record that the staff at Samaritan Hospital was aware of this unique internal condition (cf., Witt v Agin, 112 AD2d 64, affd 67 NY2d 919). Hence, we find that plaintiff cannot assert a claim of negligence against Samaritan Hospital based upon its staffs аdherence to the directives of Nagengast’s private physician.

Finally, Samaritan Hospital was under no duty to obtain Nagengast’s informed consеnt to the treatment since there was no reason to suspect malpractice (see, Fiorentino v Wenger, 19 NY2d 407, 417, supra; Sledziewski v Cioffi, 137 AD2d 186, 189, supra).

Mikoll, J. P., Crew III, White and Casey, JJ., concur. Ordered that the order is rеversed, on the law, with costs, motion granted, summary judgment awarded to defendant Samaritan Hospital, and the complaint and all cross claims dismissed аgainst said defendant.

Notes

. Due to Nagengast’s death in September 1990, the complaint was later amended to reflect that the ‍‌‌‌​​‌‌​​‌‌‌‌​​‌​​​​‌‌​‌​‌‌​​​​‌‌​‌​‌‌‌​‌​‌‌‌‌​​‍fact that plaintiff, Nagengast’s husband, was substituted as the administrator of her estate.

. We note that the claims, by plaintiff first raised in opposition to Samaritan Hospital’s motion alleging that it did not use proper procedures in granting Reddy hospital privileges or have proper guidelines in place for the use of radiation facilities were not raised in the original pleadings nor are they discussed in plaintiffs brief on appeal. We therefore deem such issues to be abandoned (see, Lynch v Adirondack Tr. Lines, 169 AD2d 904, 905).