Opinion
# 2011-015-267 Claim No. 116506 Motion No. M-80082
10-31-2011
CORA v. THE STATE OF NEW YORK
Synopsis
Inmate's medical malpractice claim was dismissed where alleged negligence was committed entirely by independent contractor physician over whom the State exercised no supervision or control. Doctrine of ostensible agency did not apply where surgery was performed in outside hospital. Case information
UID: 2011-015-267 Claimant(s): RAYMOND CORA Claimant short name: CORA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116506 Motion number(s): M-80082 Cross-motion number(s): Judge: FRANCIS T. COLLINS Franzblau Dratch, P.C. Claimant's attorney: By: Elizabeth A. Delahunty, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Belinda A. Wagner, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: October 31, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
Claimant seeks damages for acts of medical malpractice which allegedly occurred at Albany Medical Center while he was in the care custody and control of the Department of Corrections and Community Supervision (hereinafter "DOCCS"). In a notice of intention to file a claim served on May 24, 2007 in which the claimant, then pro se, alleged the following:
"Franklin C.F. Medical Dept. refered me and transported me to their treatment specialist to perform surgery on my left eye, it was predicted that Albany Medical Center Dept. of Ophthalmology Lions Eye Institute would provide adequate care and medical attention to my eye to fix my problem and to correct my vision, it being a catarac removal. On 3/7/07 I was transported by D.O.C.S. to Albany Medical Center Dept. of Ophthalmology surgery area Hospital where surgery to my left eye was performed by a ophthalmologist surgeon, Dr. Michael W. Belin, M.D., due to ineffective medical care and treatment on my eye, the wrong lens and or medical materials were used in my surgery and treatment leaving my vision impaired where I suffer complications in seeing correctly. It is necessary for me to again go under proper surgery with pain and discomfort to try and correct the damage caused by negligent care and inadequate medical attention."
The quoted excerpt is uncorrected.
A claim was thereafter served and filed on March 5, 2009 in which it is alleged that "[d]efendant, its agents, servants and employees were negligent and careless and deviated from accepted medical standards of care in performing cataract surgery on Claimant's left eye on March 7, 2007 . . . in failing to timely recognize the surgical departures; in failing to timely diagnose the complications from the surgical departures; in failing to properly treat the complications from the surgical departures; . . . and otherwise being negligent and careless in the premises" (defendant's Exhibit B, ¶ 3). Defendant thereafter served a Demand For Amended Verified Bill Of Particulars in which it sought further particularization of "how defendant was negligent and/or careless" (defendant's Exhibit F, defendant's Demand For Amended Verified Bill of Particulars", item number 1). Claimant responded "Defendant, through [sic] was negligent in installing the improper lens in claimant's left eye while performing cataract surgery" (claimant's Amended Verified Bill of Particulars, item number 1).
In support of its motion for summary judgment defendant contends that it may not be held vicariously liable for negligent acts or omissions of an independent consultant who performs surgery at a facility not owned or operated by the State of New York. Submitted in support of the motion is the affidavit of Richard McDevitt, Regional Health Services Administrator for the New York State Department of Corrections and Community Services ("DOCCS"), who avers based upon his review of certain medical records that the claimant underwent cataract surgery by Michael W. Belin, MD, at Albany Medical Center on March 7, 2007. He states that "Dr. Belin is not an employee of DOCCS. Dr. Belin is an independent contractor who provided medical treatment to Mr. Cora. Albany Medical Center is not a State of New York health care facility" (defendant's Exhibit H, ¶ 4).
Attached to Mr. McDevitt's affidavit are the records which he reviewed. These records include a referral form dated March 2, 2007 reflecting that Dr. Cahill referred claimant for cataract surgery, that the surgery was performed by Dr. Michael Belin at Albany Medical Center on March 7, 2007, and that claimant was seen in follow-up at Albany Medical Center on March 15, 2007 and April 19, 2007. The consultant's reports related to these follow-up visits are entitled "NYS Department of Correctional Services Health Services System Request And Report of Consultation." It is noted at the end of each report that "Consultation is a recommendation. Final determination will be made by the inmate's NYSDOCS physician". It was also noted on these reports that the referring physician for the March 15, 2007 appointment was Dr. Brian Connolly, M.D. and for the April 19, 2007 appointment "Dept of Ophthalmology". The consultant completing the April 19, 2007 report, whose name is illegible, indicates "large refractive error - possible candidate for piggyback lens" (defendant's Exhibit H, record relating to appointment on April 19, 2007).
In opposition to the motion, claimant's counsel argues that even if Dr. Belin is not employed by the State of New York, he and his associates examined and treated claimant at Coxsackie Correctional Facility and claimant perceived, therefore, that Dr. Belin was an agent of the State. On this basis, claimant contends that the State may be held vicariously liable for Dr. Belin's conduct under the theory of ostensible agency. To support this theory, claimant submits the transcript of his examination before trial and medical records dated February 5, 2007 and July 2, 2007.
Claimant testified that a physician at Franklin Correctional Facility examined his eyes and advised him that he had a scratch on the lens of his left eye which could be "fixed" (claimant's Exhibit A, p. 33). He was then examined at Coxsackie Correctional Facility in February 2007 by Dr. Belin who was the specialist that performed the surgery (claimant's Exhibit A, pp. 34, 35). Dr. Belin informed claimant that he had a cataract on his left eye, which could be surgically removed and a lens implanted (claimant's Exhibit A, pp. 36, 37). Dr. Belin performed the surgery at Albany Medical Center in March 2007 (Id. at p. 36). It was the claimant's understanding that he would be able to see better after the surgery than before the surgery, which did not turn out to be the case (Id. at 34-36). Upon his release from Albany Medical Center, claimant returned to Franklin Correctional Facility where he spent the night in the infirmary before being released to the general population (Id. at 38). Sometime after the surgery, claimant was transported to Coxsackie Correctional Facility for follow-up examination by Dr. Belin (Id. at pp. 38-39). Claimant informed Dr. Belin that his vision was still impaired and Dr. Belin advised him that it would take some time to adapt to the implant that was placed in his eye (Id. at p. 39). Claimant was seen by Dr. Belin several times after the surgery (Id. at pp. 40-41). During the six-month period between the date of the surgery in March 2007 and the date of the claimant's release from DOCCS' custody in September 2007, claimant was seen by a physician at Franklin Correctional Facility as well as Dr. Belin and his "associates" at Coxsackie Correctional Facility (Id. at p. 44). Claimant was "told that the implant that they installed . . . was the wrong size or wrong formula" (Id. at p. 45). Claimant testified that he experienced headaches, light sensitivity and discomfort following his release from DOCCS' custody in September 2007. Claimant was returned to DOCCS' custody in June 2010 and was seen by an Ophthalmologist in September 2010 who recommended that an additional contact lens be implanted, however, according to the claimant, the State would not approve the surgery (Id. at pp. 47-49).
The point of service noted on each of the medical records submitted in opposition to the motion was Coxsackie Regional Medical Unit. The record relating to the February 5, 2007 appointment contains information identifying Dr. Gerald W. Cahill as the referring physician and, in the section of the report entitled "Consultant Report", the notation "Book Cataract Surgery OS". The report is signed by Dr. Belin. The record relating to the July 2, 2007 appointment indicates claimant was referred by Robert Eden-OPH, that the record was reviewed by Glenn Champagne, M.D., and that the provider was Michael Belin-OPH.
It is the general rule that "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" (Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; see also Hill v St. Clares's Hosp., 67 NY2d 72, 79 [1986]). Thus, the "affiliation of a doctor with a hospital or other medical facility, not amounting to employment, [is not] alone sufficient to impute the doctor's negligent conduct to the hospital or facility" (Hill v St. Clares's Hosp., 67 NY2d at 79 [1986]; Brink v Muller, 86 AD3d 894 [2011]). Indeed, irrespective of the label used to describe the relationship between two parties, the determinative factor is the ability to control the manner in which the work is performed (Roberts v El-Hajal, 23 AD3d 733, 734 [2005]; Kavanaugh v Nussbaum, 71 NY2d 535, 547 [1988]; Mduba v Benedictine Hosp., 52 AD2d 450, 452 [1976]). Exceptions to the general rule stated above include, but are not limited to, "negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or 'inherently' dangerous . . . and, finally instances in which the employer is under a specific nondelegable duty" (Kleeman v Rheingold, 81 NY2d at 274). To the extent the first category of "exceptions" concerns the employer's liability for its own acts, rather than for the acts of others, it has been acknowledged that it is not a true exception (Kleeman v Rheingold, 81 NY2d at 274, n 1).
In addition to the above, another exception known as the ostensible or apparent agency theory has evolved in the context of medical treatment and malpractice. This theory of liability was succinctly described by the Appellate Division, Third Department in St. Andrews v Scalia (51 AD3d 1260, 1261-1262 [2008]; see also Fiorentino v Wenger, 19 NY2d 407 [1967]):
"Under settled principles, a hospital is not ordinarily liable for the negligent acts of an independent treating physician who is not an employee of the hospital but, rather, is part of an independent group of physicians, except under an ostensible/apparent agency theory, i.e., where the hospital's words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital (see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Thurman v United Health Servs. Hosps., Inc. 39 AD3d 934, 935- 936 [2007], lv denied 9 NY3d 807 [2007]; cf. Imbierowicz v A.O. Fox Mem. Hosp., 43 AD3d 503, 507 [2007])".
The ostensible or apparent agency theory for imputing the negligence of an independent contractor/medical provider to a principal has its origins in Hannon v Siegel-Cooper Co. (167 NY 244 [1901]). In that case the negligence of an independent dentist practicing dentistry in a department store, which advertised the availability of dental services, was imputed to the store owner. In more recent years, the doctrine has often been applied to emergency room treatment. Such was the case in the Appellate Division, Third Department decision in Mduba v Benedictine Hosp. (52 AD2d 450 [1976]). In Mduba, the Court held that even assuming the emergency room doctor in that case was an independent contractor, i.e, the hospital did not supervise the means and methods of the work, the hospital "having held itself out to the public as an institution furnishing doctors, staff and facilities for emergency treatment, [the hospital] was under a duty to perform those services and is liable for the negligent performance of those services by the doctors and staff it hired and furnished . . . (Id. at 454; see also Thurman v United Health Servs. Hosps. Inc., 39 AD3d 934 [2007]; Searle v Cayuga Med. Ctr. at Ithaca, 28 AD3d 834 [2006]; Citron v Northern Dutchess Hosp., 198 AD2d 618 [1993]). The Appellate Division, Third Department, recently restated the rule in Brink v Muller (86 AD3d at 895-896):
"As a general proposition, 'a hospital may not be held liable for the malpractice of a physician who is not [its] employee' . . . However, an exception to this general rule exists where a patient comes into a hospital emergency room seeking treatment from the hospital itself rather than a physician of the patient's own choosing . . . in which case liability may be imposed under an apparent or ostensible agency theory. 'Essential to the creation of apparent [agency] are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to act on behalf of the principal' . . . Specifically, '[i]n the context of a medical malpractice action the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf' " (citations omitted).
The liability of the State for treatment rendered to inmates by third party contractors in the custody of the State was addressed by the Court in Rivers v State of New York (159 AD2d 788 [1990], lv denied 76 NY2d 701 [1990]), in which the Appellate Division, Third Department, reversed a Court of Claims decision which had held that the State's duty to provide reasonable and adequate medical care to inmates in its custody was nondelegable. The Court rejected the view that the defendant's duty of care is nondelegable and held that the State was not vicariously liable for the conduct of an independent contractor, a surgeon, whose services were performed at an outside facility not owned or operated by the State of New York (see also Triftshauser v State of New York, 2006 WL 6067592 [Ct Cl 2006], affd 45 AD3d 1354 [2007] [State not liable for medical malpractice occurring off prison premises]; Boone v State of New York, UID No. 2010-029-049, Claim No. 115860 [Ct Cl, November 10, 2010], Mignano, J. [State not liable for alleged malpractice occurring off prison premises]; Moon v County of Erie, et al., UID No. 2002-031-038, Claim No. 94792 [Ct Cl, September 5, 2002] Minarik, J. [State not liable for treatment provided by independent contractor to inmate off prison premises]).
In Soltis v State of New York (172 AD2d 919, 920 [1991]), the Appellate Division, Third Department, again addressed the liability of the State for injuries to an inmate allegedly caused by an independent contractor/physician. In that case, a consultation between the surgeon and the inmate patient occurred at the prison facility, the surgical procedure was performed in the prison operating room and the surgeon was assisted by a facility nurse. The Court held that although the physician was an independent contractor, the State nevertheless failed to establish its entitlement to judgment dismissing the claim as a matter of law because questions of fact remained unresolved "as to whether claimant, in accepting the services of [the physician] reasonably assumed that [the physician] was either employed by or acting on behalf of the State and, therefore, that [the physician's] services were offered by the State" (Id. at 920). Importantly, the Court stated the following in distinguishing its prior holding in Rivers (supra):
"As a final matter, we note that, contrary to the State's position, our decision in Rivers v State of New York, (159 AD2d 788 [1990], lv denied 76 NY2d 701 [1990]) does not compel a result different from that reached here. In Rivers, the inmate/claimant received surgical services at an outside hospital from a physician who had no actual or apparent relationship with the State and, thus, the principle of agency by estoppel was inapplicable."
The defendant established its prima facie entitlement to judgment as a matter of law through the submission of proof that Dr. Belin was not an employee of the State but an independent contractor (Sullivan v Sirop, 74 AD3d 1326 [2010]; Schultz v Shreedhar, 66 AD3d 666 [2009]; Sledziewski v Cioffi, 137 AD2d 186 [1988]). In opposition to the motion, claimant failed to dispute Dr. Belin's employment status or otherwise submit proof tending to establish defendant's supervision or control over the manner in which the work of Dr Belin was performed. Moreover, claimant failed to raise a question of fact as to whether defendant may be vicariously liable for Dr. Belin's alleged malpractice under the doctrine of ostensible or apparent agency (Id.; cf. Alvarado v Beth Israel Med. Ctr., 78 AD3d 873 [2010]; Sampson v Contillo, 55 AD3d 588 [2008]; Dragotta v Southampton Hosp. 39 AD3d 697 [2007]). Unlike the facts in Soltis (supra), where the independent contractor-physician performed surgery on the claimant at the prison facility with the assistance of a staff nurse, here, the surgery occurred at Albany Medical Center, a facility neither owned nor operated by the State (Rivers v State of New York, supra). Inasmuch as claimant's allegations of negligence arise solely from the manner in which the surgery was performed by Dr. Belin, the State may not be held vicariously liable under the ostensible agency doctrine. There being no independent basis for liability on the defendant, summary judgment dismissing the claim is required (compare Simmons v State of New York, 12 Misc 3d 1197 [A] [2006] [while State was not liable for hospital's malpractice in treating inmate, it was liable for its own negligent delay in providing follow-up care]).
Accordingly, defendant's motion is granted and the claim is dismissed.
October 31, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated July 11, 2011;
2. Affirmation of Belinda A. Wagner dated July 11, 2011 with exhibits;
3. Affirmation of Elizabeth A. Delahunty dated July 28, 2011 with exhibits;
4. Reply affirmation of Belinda A. Wagner dated August 2, 2011.