While it is hornbook law that a hospital will be vicariously liable for the acts of its employees within the scope of their employment, a more difficult question arises when malpractice is claimed on the part of a non-employed physician working within a medical facility. Vicarious liability is an exception to the general proposition that limits a defendant’s liability to one’s own wrongdoing. Mondello v. New York Blood Center, 80 N.Y.2d 219, 227 (1992).
Where treatment is provided by an independent physician who was seen by the patient prior to treatment in the hospital, the doctrine of respondeat superior does not apply, as the hospital merely serves as the facility where such treatment may be rendered. Fiorentino v. Wenger, 19 N.Y.2d 407, 414 (1967).
However, when the hospital has held itself out to the public as an institution furnishing treatment such as emergency care, it may incur a duty to provide those services according to the standard of care, regardless of the employment status of those providing the treatment. Mduba v. Benedictine Hospital, 52 A.D.2d 450, 454 (3d Dept. 1976). As the relationships between the entities providing medical services have become increasingly complex, it comes as no particular surprise that litigation relating to the vicarious liability of healthcare institutions has incompletely refined the attendant issues.
The significant policy considerations are seen in the Fiorentino decision, a case in which a 14-year-old patient died following a high-risk surgical procedure. The case reached the Appellate Division on appeal by the defendant hospital which had been held liable for not verifying informed consent by direct interaction with the patient’s family. The facts did not rise to the level where there was malpractice on the part of the surgeon for performing the surgery itself, and the court expressed its reluctance to intervene in the independent physician-patient relationship and the medical judgment involving the discussion of operative risk, which it acknowledged to be “one of great delicacy.” Id. at 416.
In the unanimous opinion by Judge Breitel, the court reversed both lower courts and dismissed the complaint as to the hospital, declining to extend the hospital’s liability beyond its obligation to act if it knew there was an absence of consent or that the procedure was not permissible under existing standards. Id. at 418. In discussing the competing policy considerations 25 years later, the court in Mondello was faced with a case in which a mother and her infant daughter died as a result of a contaminated blood transfusion. The court reaffirmed its holding in Fiorentino, citing the “mistaken generality that hospitals must be viewed as total care providers with a common, united interest with all other providers.” Mondello, 80 N.Y.2d at 228).
A close look at the intervening decision of the Third Department in Mduba shows that it is not in conflict with the consistent holding of the Court of Appeals that the undertaking which the hospital makes to a patient in the facility is less than a plenary assumption of all medical responsibilities and services.
Likewise, the relationship between an independent physician and the hospital does not thrust vicarious liability upon the hospital for all of the actions of the doctor. Mondello, 80 N.Y.2d at 228. First, the Mduba court found that the emergency room physician was legally an employee of the hospital, and second, the hospital having held itself out as a provider of emergency medical services had undertaken but did not discharge the duty to provide the patient with a timely blood transfusion. 52 A.D.2d at 453. As a result of the delay, the adult female patient died in the emergency room. The Mduba court specifically acknowledged at page 454 that its holding “does not mean that a hospital will be liable under principles of respondeat superior for the acts or omissions performed on its premises by any and every physician or other medical attendant.”
In that case, the emergency room attending had entered a contract with the hospital which specifically termed him an independent contractor and not an employee, but the court looked to the hospital’s control with respect to the manner in which his work was done rather than the contract which it termed “not determinative.” Id. at 452. Unfortunately, there has not evolved an easy method for resolving whether a hospital or other entity has sufficient control over the manner of work of a non-employee to acquire vicarious liability, which often leaves this as a complex question of fact. Rivera v. Bronx-Lebanon Hospital, 70 A.D.2d 794 (1st Dept. 1979).
To further complicate the vicarious liability issue, there developed a separate line of cases, including Hill v. St. Clare’s Hospital, 67 N.Y.2d 72 (1986), which holds that the owner of a medical facility may be vicariously liable for the acts of a treating doctor even absent participation in or control over the treatment itself. This separate basis for liability arises from precedent on ostensible agency, or agency by estoppel, whereby the owner of a facility which presents to the public as providing medical services is estopped from denying responsibility for the competence and due care of those retained to provide the medical services.
To support a claim based upon ostensible agency, however, the plaintiff must set forth evidence to support the conclusion that the healthcare entity itself engaged in some misleading conduct in representing the doctor who was authorized to act as its employee. Plaintiff must also provide evidence that the patient reasonably relied upon that representation in deciding to undergo the medical services, and that the services were accepted based upon the patient’s reliance on the relationship between the entity as principal and the doctor as agent. Muslim v. Horizon Medical Group, 118 A.D.3d 681 (2d Dept. 2014); Kessler v. Small, 140 A.D.3d 1021 (2d Dept. 2016).
Despite the fertile ground for raising factual issues as to vicarious liability, there exist several opportunities for defending the issue as a question of law. First of all, the plaintiff has the obligation to plead the issue in the complaint and amplify the claim in the bill of particulars. Where the theory of recovery is not properly included in the stated claim, the lower court should dismiss the vicarious liability claim as a matter of law. Sessa v. Peconic Bay Medical Center, 200 A.D.3d 1085 (2d Dept. 2021); DeMartino v. Kronhaus, 158 A.D.3d 1286 (4th Dept. 2018).
The movant hospital may also succeed by demonstrating that the physician was not negligent, or that the negligence was not a proximate cause of the claimed injury. Mitchell v. Goncalves, 179 A.D.3d 787 (2d Dept. 2020). The burden of proving vicarious liability for the acts of a non-employee rests with the plaintiff, whose obligation will frequently extend to providing evidence that the hospital determined how and by whom the patient would be treated in order to avoid dismissal of the claim. Litwak v. Our Lady of Victory Hospital, 238 A.D.2d 881 (4th Dept. 1997).
It is useful to note that not every plaintiff who has entered the hospital through the emergency room is entitled to the same legal outcome as the patient in Mduba. There is in every case an issue as to whether the treating doctor is under the control of the hospital. Fuessel v. Chin, 179 A.D.3d 899 (2d Dept. 2019). In Gardner v. Brookdale Hospital, 73 A.D.3d 1124 (2d Dept. 2010) the court affirmed the dismissal of the vicarious liability claim against the hospital in spite of the fact that the patient had not requested a particular doctor upon entry at the emergency room and had never heard of or met the doctor who rendered her care. See also Christopherson v. Queens-Long Island Medical Group, 17 A.D.3d 393 (2d Dept. 2005). Likewise, when the patient entered through the emergency room, but the treating surgeon was called by his private physician, summary judgment has been granted to the hospital. Schultz v. Shreedhar, 66 A.D.3d 666 (2d Dept. 2009); Spiegel v. Beth Israel Medical Center, 149 A.D.3d 1127 (2d Dept. 2017).
Attending specialists in anesthesiology, radiology, and pathology frequently practice within health care facilities which do not employ them. Here the notion of control is especially important, and the fact that the associated personnel employed by the hospital do not have the expertise to supervise the treatment is critical to the issue of control. The hospitals in Nagengast v. Samaritan Hospital, 211 A.D.2d 878 (2d Dept. 1995) and Thurman v. United Health Services, 39 A.D.3d 934 (3d Dept. 2007) both prevailed on the analysis of the control issue. See also Holzberg v. Flower and Fifth Avenue Hospitals, 39 A.D.2d 526 (1st Dept. 1972), aff’d. 32 N.Y.2d 716 (1973); King v. Mitchell, 31 A.D.3d 958 (3d Dept. 2006).
The determination of the issues surrounding the vicarious liability for the acts of a non-employed physician requires the exploration and development of all attendant circumstances, whether the issue is to be determined by the court or by the jury. Augeri v. Massoff, 134 A.D.2d 308 (2d Dept. 1987). The defense must be fully equipped to meet the challenge prior to trial in order to achieve success.
This article is also on Law.com: Vicarious Liability for the Acts of Non-Employed Physicians