Opinion
2013-03-14
George POLGANO, et al., Plaintiffs–Appellants, v. Nicholas CHRISTAKOS, et al., Defendants, St. Barnabas Hospital, Defendant–Respondent.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellants. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondent.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellants. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondent.
TOM, J.P., ANDRIAS, FREEDMAN, ROMÁN, GISCHE, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 20, 2011, which, to the extent appealed from as limited by the briefs, granted the motion of defendantSt. Barnabas Hospital for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
A hospital is ordinarily not liable for the acts of a private attending physician ( see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823 [1986] ) unless a patient, in accepting treatment by the private physician, relies upon the fact that the physician's services are provided by the physician as the hospital's apparent agent ( see id. at 79–82, 499 N.Y.S.2d 904, 490 N.E.2d 823), such as where the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing ( see Shafran v. St. Vincent's Hosp. & Med. Ctr., 264 A.D.2d 553, 558, 694 N.Y.S.2d 642 [1st Dept. 1999] ). Where apparent agency is established as a predicate for holding the hospital responsible for the alleged malpractice ( Hill, 67 N.Y.2d at 79, 499 N.Y.S.2d 904, 490 N.E.2d 823), liability is contingent upon the plaintiff having a viable claim against the physician who treated him ( see Kukic v. Grand, 84 A.D.3d 609, 924 N.Y.S.2d 50 [1st Dept. 2011]; Magriz v. St. Barnabas Hosp., 43 A.D.3d 331, 841 N.Y.S.2d 245 [1st Dept. 2007], lv. denied and dismissed10 N.Y.3d 790, 857 N.Y.S.2d 23, 886 N.E.2d 786 [2008] ).
Defendant established its entitlement to judgment as a matter of law by demonstrating that independent vascular surgeons, employees of nonparty Vascular Surgical Group, were responsible for the supervision and management of plaintiff's care. Since it is conceded that plaintiff arrived at defendant hospital in an unconscious state, liability on a theory of ostensible agency finds no record support ( Brink v. Muller, 86 A.D.3d 894, 896, 927 N.Y.S.2d 719 [3d Dept. 2011] ). Nor is there evidence that hospital employees failed to carry out instructions given by the attending physicians. Thus, there is no basis upon which to subject the hospital to liability ( Walter v. Betancourt, 283 A.D.2d 223, 224, 724 N.Y.S.2d 728 [1st Dept. 2001] ).
As to the affidavit submitted by plaintiffs' expert, the conclusory assertion that the hospital's doctors should have administered adequate anticoagulation therapy does not suffice to raise a question of fact with respect to whether hospital physicians assumed responsibility for plaintiff's treatment. Moreover, plaintiffs' expert failed to identify the manner in which the hospital staff deviated from good and accepted medical practice ( see Lopez v. Master, 58 A.D.3d 425, 870 N.Y.S.2d 306 [1st Dept. 2009] ).