New York Judge Finds "Emergency Room Exception" to General Rule Against Vicarious Liability
February, 2006
In Dimitriou v. Mansouri, Index No. 19220/2003 (Sup. Ct. Nassau Cty., January 17, 2006), a trial judge recently denied a defendant-hospital’s motion for summary judgment. The trial court held that a triable material issue of fact existed as to the hospital’s liability on the grounds of apparent or ostensible agency for the professional negligence of its attending surgeon, despite the fact that Plaintiff’s primary care physician recommended the surgeon and at the time of her admission to the defendant-hospital, Plaintiff had a pending appointment with the attending surgeon.
This medical malpractice action was commenced in December, 2003, by Plaintiff, Ann Marie Dimitriou. Plaintiff claimed that she went to North Shore University Hospital Plainview facility’s Emergency Room on October 4, 2001, with discoloration of her toes on her right foot and complaining of excruciating right foot pain. While in the Emergency Room, Plaintiff was examined by Dr. Jerald X. Brogan, Jr., the hospital’s Director of Emergency Medical Services. Dr. Brogan conducted a physical examination and made a working diagnosis of arterial occlusion. Notably, Dr. Brogan next contacted Plaintiff’s primary care physician, Dr. Arcati, and discussed her condition and complaints with him. Dr. Arcati, requested that Dr. Brogan contact Dr. Mehran Mansouri for a surgical consultation. Dr. Mansouri was the Chief of General Surgery and Director of the Department of Surgery at North Shore University Hospital at Plainview. It appeared from the record that at the time of her admission to the Emergency Room, Plaintiff had a pending appointment with Dr. Mansouri.
Subsequently, Dr. Mansouri performed a right femoral artery thrombectomy on Plaintiff. From October 4, 2001, through October 13, 2001, Plaintiff remained a patient of Defendant/hospital; thereafter, she was transferred to North Shore University Hospital Facility in Manhasset. Ultimately, Plaintiff was caused to submit to a below the knee amputation of her right lower extremity.
Plaintiff contended that Dr. Mansouri was negligent and deviated from accepted standards of general surgical care in his treatment of Plaintiff. Plaintiff further alleged that Defendant/hospital should be held vicariously liable for the negligent acts or omissions of Dr. Mansouri. Defendant/hospital moved for summary judgment pursuant to CPLR §3212.
The trial court stated that a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee, citing Orgovan v. Bloom, 7 A.D.3d 770, 776 N.Y.S.2d 879 (2d Dep’t 2004). The court then stated an exception to this rule, namely, when a patient enters a hospital through its Emergency Room seeking treatment from the hospital and not from any particular physician, then the hospital can be held vicariously liable. Following this analysis, the court denied Defendant/hospital’s motion, because Plaintiff entered the hospital on an emergency basis. In the court’s view, Defendant/hospital failed to set forth sufficient evidence demonstrating that Plaintiff sought treatment from Dr. Mansouri as a privately selected physician, rather than from the hospital itself.
Citing to the case of Augeri v. Massoff, 134 A.D.2d 307, 520 N.Y.S.2d 7 (2d Dep’t 1987), the court opined that Dr. Arcati’s recommendation of Dr. Mansouri for a surgical consult, did not affirmatively indicate that Plaintiff had independently retained Dr. Mansouri. The trial court noted that when Plaintiff went to the Emergency Room, she had not yet seen Dr. Mansouri and, as such, was not yet his patient. The court was unconvinced that Plaintiff would have independently selected Dr. Mansouri for her surgery had she not been under the stressful situation of having to seek immediate emergency medical attention at Defendant/hospital’s Emergency Room.
Interestingly, the trial court did not base its decision simply on the fact that Dr. Mansouri was an employee of the hospital at the relevant time, in dual capacities as Chief of General Surgery and Director of the Department of Surgery. Rather, the court opined that standing alone, these facts provided an “insufficient predicate for imposition of vicarious liability,” and cited to the Third Department case of Sledziewski v. Cioffi, 137 A.D.2d 186, 528 N.Y.S.2d 913 (3d Dep’t 1988).
Learning Point:
Hospitals should note that a physician serving as an attending surgeon of the Hospital will not suffice to impose vicarious liability on the Hospital, in the absence of other factors. However, a hospital can be vicariously liable for a physician’s actions if the patient enters the hospital through the emergency room, despite the patient’s pre-existing appointment to see the physician. •
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