Opinion
22818/15
02-25-2021
Robert BENITEZ, Plaintiff, v. Jalu PATEL, D.P.M., and Praveen Kumrah, D.P.M., Defendants.
Plaintiff's Attorney: Robert A. Hyams, Esq., 295 Madison Ave., Suite 1600, New York, New York 10017, 1(212)867-7947 Dr. Kumrah's Attorney: Karen B. Corbett, Esq., Martin, Clearwater & Bell, LLP, 90 Merrick Avenue, East Meadow, New York 11554, 1(516)222-8500 Dr. Patel's Attorney: Siger Gfeller Laurie LLP, 100 Overlook Center, 2nd Floor, Princeton, New Jersey 08540
Plaintiff's Attorney: Robert A. Hyams, Esq., 295 Madison Ave., Suite 1600, New York, New York 10017, 1(212)867-7947
Dr. Kumrah's Attorney: Karen B. Corbett, Esq., Martin, Clearwater & Bell, LLP, 90 Merrick Avenue, East Meadow, New York 11554, 1(516)222-8500
Dr. Patel's Attorney: Siger Gfeller Laurie LLP, 100 Overlook Center, 2nd Floor, Princeton, New Jersey 08540
Joseph E. Capella, J.
The following papers numbered 1 to 6 read on these motions noticed on February 27, 2019, and duly submitted on July 8, 2020.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 - 2
ANSWERING AFFIDAVIT AND EXHIBITS 3 - 4
REPLY AFFIDAVIT AND EXHIBITS 5 - 6
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THESE MOTIONS ARE GRANTED AS FOLLOWS:
The defendant, Praveen Kumrah, D.P.M., moves for summary judgment ( CPLR 3212 ) dismissal of the instant podiatric malpractice action which alleges, inter alia , liability against Dr. Kumrah under a theory of respondent superior. Besides opposing the motion, plaintiff filed a motion some two months later seeking to amend ( CPLR 3025(b), § 202(b) ) the caption to add Praveen Kumrah Podiatry, P.C. (Praveen Kumrah Podiatry), and Bronx Foot Surgeons, P.C. (Bronx Foot Surgeons), as additional defendants. Dr. Kumrah argues that he is entitled to summary judgment in that he never treated plaintiff, and as he did not employ or supervise defendant, Jalu Patel, D.P.M., he cannot be held vicariously liable for the care Dr. Patel provided plaintiff. To find Dr. Kumrah (or Praveen Kumrah Podiatry) responsible will necessitate the establishment of vicarious liability and a viable claim against the treating podiatrist, Dr. Patel. ( Polano v Christakos , 104 AD3d 501 [1st Dept 2013] ; Magriz v St. Barnabas , 43 AD3d 331 [1st Dept 2007].) It must be noted that Dr. Kumrah's motion papers do not attempt to determine whether Dr. Patel was negligent, and the complaint makes it clear that plaintiff has no direct negligence claims against Dr. Kumrah or Praveen Kumrah Podiatry. Hence, the sole issue raised in Dr. Kumrah's motion is not whether Dr. Patel was negligent, but whether Dr. Kumrah or Praveen Kumrah Podiatry can be held vicariously liable for Dr. Patel's alleged (emphasis added) negligence.
Dr. Kumrah's motion also states that it seeks dismissal of plaintiff's negligent supervision claim; however, the complaint dated May 20, 2015, only alleges one theory of liability against Dr. Kumrah, and that is respondent superior.
Praveen Kumrah Podiatry is not named as a defendant in the complaint.
Under the doctrine of respondent superior, a doctor or medical facility may be vicariously liable for the malpractice of its employee(s) ( Bing v Thunig , 2 NY2d 656 [1957] ), or if there is no employer and employee relationship, there may be vicarious liability on the theory of agency/control in fact, or in the alternative theory of apparent/ ostensible agency. ( Hill v St. Clare's , 67 NY2d 72 [1986].) According to Dr. Kumrah, he and Praveen Kumrah Podiatry cannot be held liable for Dr. Patel's alleged malpractice because Dr. Patel was an independent contractor and not an employee. Dr. Kumrah further argues that liability cannot exist under a theory of agency/control in fact because Dr. Patel was an independent contractor with his own practice who had no control over the facility's administration or operation, and over whom Dr. Kumrah or Praveen Kumrah Podiatry had no supervisory duties, powers or control with respect to the manner in which Dr. Patel treated plaintiff. ( Id. ) Of course, even where control is absent, liability may still exist under the theory of apparent/ostensible agency, which focuses on whether plaintiff could have reasonably believed based upon the surrounding circumstances that Dr. Patel was provided to him by the medical facility, or was otherwise acting on its behalf ( Thurman v United , 39 AD3d 934 [3rd Dept 2007] ).
Although the complaint alleges respondent superior without any specificity, the motion papers touch upon all three respondent superior theories.
Apparent/ostensible agency has been applied to hold a medical facility responsible for the malpractice of a physician providing services there, despite the physician's status as an independent contractor, where medical care was sought by a patient from the facility rather than from a particular physician. ( Hill , 67 NY2d 72.) However, the application of this theory depends upon whether the patient could have reasonably believed, based upon all of the surrounding circumstances, that the physician was provided by the facility or was otherwise acting on their behalf. ( Soltis v State of New York , 172 AD2d 919 [3rd Dept 1991].) For example, in Klippel v Rubinstein , (300 AD2d 448 ), there was no vicarious liability because plaintiff-decedent was not seeking treatment from the defendant-hospital, but was admitted under the care of defendant-doctor for a routine labor and delivery. In Gardner v Brookdale , (73 AD3d 1124 ), the plaintiff-mother received prenatal care at a HIP Center, and was instructed by the HIP Center to go to defendant-hospital for her infant's birth. Vicarious liability was not found because upon admission to the labor and delivery department, plaintiff-mother was treated by a doctor who was on call (emphasis added) from the HIP Center. And in Thurman v United , (39 AD3d 934 ), defendant-hospital was not vicariously liable when plaintiff's care was almost immediately assumed by his treating gastroenterologist, who admitted plaintiff and ordered numerous diagnostic tests. According to Dr. Kumrah, apparent/ostensible agency in inapplicable because plaintiff was specifically referred to Dr. Patel by his primary care doctor, and was treated exclusively by Dr. Patel on those days that Dr. Patel utilized the podiatry office of Praveen Kumrah Podiatry.
As summary judgment relief is being sought, the movant must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. ( Alvarez v Prospect , 68 NY2d 325 [1986].) Therefore, as the movant, Dr. Kumrah must provide evidentiary proof to establish that not only did he not employ Dr. Patel, but also the absence of agency/control in fact, or apparent/ostensible agency. ( Hill, 67 NY2d 72.) If he does, then the burden shifts to plaintiff to produce evidentiary proof sufficient to create issues of fact on any of these theories to warrant a trial. ( Alvarez , 68 NY2d 325.) Relying primarily on the deposition transcripts of the parties, Dr. Kumrah was able to establish the following facts. After sustaining a laceration to his right great toe in June 2014, plaintiff was referred to Dr. Patel by his primary care doctor. From June 20, 2014 (three days after sustaining the laceration), through July 28, 2014, plaintiff was treated by Dr. Patel at the podiatry office of Praveen Kumrah Podiatry, located on 3108 Kingsbridge Avenue, Bronx, New York.
The podiatry office employed multiple podiatrists as independent contractors to work at the practice on a per diem basis. Dr. Patel worked at Praveen Kumrah Podiatry on Mondays on a per diem basis from 2009 - 2014, and worked at other podiatry offices the other days. Dr. Kumrah is the sole shareholder of Praveen Kumrah Podiatry, which provides the office space, medical supplies and billing for the podiatrists working there. The independent contractor podiatrists who worked at Praveen Kumrah Podiatry were given 1099 tax forms at the end of each year. However, in this case Praveen Kumrah Podiatry issued a 1099 to Bronx Foot Surgeons, P.C., a corporation for which Dr. Patel is the sole shareholder. Plaintiff never met nor treated with Dr. Kumrah, and Dr. Patel never sought the advice or opinion of Dr. Kumrah regarding plaintiff's care. Dr. Kumrah did not supervise Dr. Patel's work, nor did he review the charts for patients he was not personally treating.
This evidentiary proof establishes that Dr. Patel was not an employee of Praveen Kumrah Podiatry, and so the general rule that a medical facility is liable for the malpractice of its employee(s) does not apply. ( Bing v Thunig , 2 NY2d 656 [1957].) It also establishes that Praveen Kumrah Podiatry cannot be held liable under a theory of agency/control in fact because Dr. Patel was an independent contractor with his own private practice who had no control over the facility's administration or operation, and over whom it had no supervisory duties, powers or control with respect to the manner in which Dr. Patel treated plaintiff. ( Hill , 67 NY2d 72.) As previously noted, where control is absent, then liability may still exist under the theory of apparent/ostensible agency, which focuses on whether plaintiff could have reasonably believed based upon the surrounding circumstances that Dr. Patel was provided to him by Praveen Kumrah Podiatry, or was otherwise acting on its behalf. ( Thurman , 39 AD3d 934.) It bears noting that Praveen Kumrah Podiatry was not obligated to affirmatively disclaim Dr. Patel as an independent contractor in order to avoid the creation of apparent/ostensible agency. ( Id. ) The aforementioned facts demonstrate that this is not your typical apparent/ostensible agency situation in which a patient requires emergency treatment at a hospital without regards to a specific physician. ( Mduba v Benedictine Hospital , 52 AD2d 450 [3rd Dept 1976].) Here, plaintiff was referred to Dr. Patel by his primary care doctor, and from June 20 through July 28, 2014, he was treated by Dr. Patel on those days that Dr. Patel utilized the podiatry office of Praveen Kumrah Podiatry. In other words, plaintiff went to Praveen Kumrah Podiatry specifically to see Dr. Patel. Moreover, there is no testimony by the plaintiff that he reasonably believed based on the surrounding circumstances that Dr. Patel was an employee or agent of Praveen Kumrah Podiatry.
The court is satisfied that based on the aforementioned, Dr. Kumrah has met his burden of producing evidentiary proof in admissible form sufficient to establish an entitlement to summary judgment. ( Zuckerman v City of NY , 49 NY2d 557 [1980].) As the court's function in deciding a motion for summary judgment is issue finding rather than issue determination ( Sillman v Twentieth Century-Fox , 3 NY2d 395 [1957] ), the burden now shifts to plaintiff to likewise submit proof in admissible form sufficient to create issues of fact to warrant a trial. ( Kosson v Algaze , 84 NY2d 1019 [1995].) In opposition, plaintiff argues that certain portions of Dr. Patel's testimony demonstrate that he was an employee and not an independent contractor, and that Dr. Kumrah exercised control over Dr. Patel, or that at the very least plaintiff relied on apparent authority. Addressing apparent/ostensible authority first, there is no affidavit by the plaintiff included in the motion papers, and the deposition transcript does not contain any testimony by the plaintiff that he reasonably believed based on the surrounding circumstances that Dr. Patel was an employee or agent of Praveen Kumrah Podiatry. Therefore, plaintiff has not met his burden with regards to apparent/ostensible authority, and plaintiff cannot rely on this theory to support his respondent superior claim.
As for an employer/employee relationship or an agency/control in fact relationship, there was testimony that Dr. Kumrah had a payment arrangement with Dr. Patel whereby the latter would receive a fixed rate every Monday he worked, regardless of the number of patients he treated. There was also testimony that Dr. Patel regularly used the receptionist, billing clerk, patient charts and equipment of Praveen Kumrah Podiatry. However, the mere affiliation of a doctor with a medical facility, absent an employment relationship, agency/control in fact or apparent/ostensible agency, is not sufficient to impute the doctor's negligence to the facility. ( Gaddy v NY Medical College , 19 AD3d 426 [1st Dept 1963] [First Department refused to impute the negligence of plaintiff's treating physician to her regular physician even though they shared office space, services, equipment, supplies and even certain fees].) In addition, neither side produced the typical indicia or records, such as a W-2, 1099 or an employment contract, used to help distinguish between an employee/employer relationship versus that of an independent contractor. Plaintiff does refer to certain portions of Dr. Patel's testimony that he believes established an employee/employer relationship between him and Praveen Kumrah Podiatry. For instance, when asked whether he was an employee or a partner, Dr. Patel testified that he was an employee (Patel tr at 11, line 25; at 12, lines 2 - 3). When asked whether he was acting as an employee of Dr. Kumrah when he saw plaintiff, Dr. Patel answered yes (Patel tr at 13, lines 23 - 25; at 14, line 2). And when Dr. Patel was asked whether he was a salaried employee, he answered yes (Patel tr at 14, line 19 - 20).
Dr. Patel was also asked the following question and gave the following answer (Patel tr at 14, line 3 - 9):
Q. In that capacity as an employee of Dr. Kumrah, would you take direction and instruction from Dr. Kumrah with respect to the patients in the office if that direction and instruction was given by Dr. Kumrah, subject to your professional judgment, of course?
A. Yes.
Plaintiff argues that these portions of Dr. Patel's testimony clearly establish that he was an employee and not an independent contractor, and that Dr. Kumrah exercised control over Dr. Patel. ( Mbuda , 52 AD2d 450 [Third Department found that where hospital controlled the manner in which defendant-doctor operated emergency room, despite the alleged independent contractor relationship, defendant-doctor was in fact an employee].) It must be noted that the aforementioned testimony by Dr. Patel is in direct contradiction to his further testimony that he considered himself an independent contractor, and Dr. Kumrah's testimony that Dr. Patel was an independent contractor. It could be that Dr. Patel's inconsistent testimony is attributable to his lack of understanding the distinction between an employer and employee relationship and that of an independent contractor, or it could be attributable to a lack of veracity. There is no affidavit by Dr. Patel included in the motion papers that may somehow resolve this inconsistent testimony, and the Court cannot be called upon to speculate. Ultimately, in determining a summary judgment motion, the evidence must be viewed in a light most favorable to the non-movant (i.e., plaintiff). ( O'Sullivan v Presbyterian , 217 AD2d 98 [1st Dept 1995].) Hence, Dr. Patel's own testimony not only raises issues of fact, ( Esteve v Abad , AD 725 [1st Dept 1947]), but his inconsistencies must be viewed as going to veracity, which cannot be resolved via a summary judgment motion. ( Santos v Temco , 295 AD2d 218 [1st Dept 2002].) Based on the aforementioned, only that portion of Dr. Kumrah's summary judgment motion which seeks to dismiss any apparent/ostensible authority theory that may be part of plaintiff's respondent superior claim is dismissed — the balance of the motion is denied.
As previously mentioned, plaintiff seeks to use the relation-back doctrine ( CPLR § 202(b) ) in order to amend ( CPLR 3025(b) ) the caption to add Praveen Kumrah Podiatry and Bronx Foot Surgeons as additional defendants. The relation-back doctrine allows a claim asserted against a newly named defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest. The current three part test in applying the relation back doctrine was first enunciated by the Second Department in Brock v Bua , (83 AD2d 61 ), then adopted by the Court of Appeals in Mondello v NY Blood , (80 NY2d 219 ), and subsequently modified in Buran , (87 NY2d 173 ). The three part Buran test that must be satisfied in order for claims against one defendant to relate back to claims asserted against another include: (1) both claims arise out of the same conduct, transaction or occurrence, (2) the new party is "united in interest" with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well. There is no opposition by Dr. Patel or Bronx Foot Surgeons to plaintiff's request; therefore, that portion of plaintiff's motion is granted on default.
As for Dr. Kumrah and Praveen Kumrah Podiatry, there can be little dispute that the claims raised in the amended complaint arise out of the same conduct, transaction or occurrence (i.e., podiatric malpractice arising from treatment provided to plaintiff from June 20 through July 28, 2014, by Dr. Patel at the podiatry office of Praveen Kumrah Podiatry). In addition, as Dr. Kumrah is the sole shareholder of Praveen Kumrah Podiatry, and one of the original defendants served with the initial complaint, the Court is satisfied that plaintiff has met all of the elements required for the relation back doctrine. And despite Dr. Kumrah's argument to the contrary, the Court finds no prejudice to him in allowing plaintiff to amend the complaint to add Praveen Kumrah Podiatry. ( 17 Vista v Teachers Insurance , 259 AD2d 75 [1st Dept 1999].) However, a review of the proposed amended complaint reveals that in addition to the respondent superior claim, it further alleges that Dr. Kumrah and Praveen Kumrah Podiatry are liable "under theory of apparent agency." As previously discussed, plaintiff's apparent authority claim was dismissed; therefore, plaintiff has 60 days from receipt of this decision/order to serve an amended complaint consistent with the proposed amended complaint annexed as exhibit "B," less the apparent authority claims. Dr. Kumrah is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 20 days of receipt of a copy of same. This constitutes the decision and order of this court.