Opinion
23295/14
08-08-2018
Mary Sanchez, as Mother and Natural Guardian of J.S., an Infant under the age of 14 years, and Mary Sanchez, individually, Plaintiffs, v. Mumtaz Master, MD, Rodney Capiro, MD, St. Barnabas Hospital and St. Barnabas OB/GYN, P.C., Defendants.
Attorney for Plaintiffs: James S. McCarthy, Esq. BUTTAFUOCO & ASSOC, PLLC 144 Woodbury Road Woodbury, New York 11797 (516)746-8100 Attorney for St. Barnabas Hospital: Myrna A. Levinson, Esq. GARBARINI & SCHER, PC 432 Park Ave. South, 9th Floor New York, New York 10016 (212)689-1113 Attorney for St. Barnabas OB/GYN & Dr. Master: BROWN GRUTTADARO GAUJEAN & PRATO, LLC One North Broadway, Suite 1010 White Plains, New York 10601 (914)949-5300
Attorney for Plaintiffs: James S. McCarthy, Esq. BUTTAFUOCO & ASSOC, PLLC 144 Woodbury Road Woodbury, New York 11797 (516)746-8100 Attorney for St. Barnabas Hospital: Myrna A. Levinson, Esq. GARBARINI & SCHER, PC 432 Park Ave. South, 9th Floor New York, New York 10016 (212)689-1113 Attorney for St. Barnabas OB/GYN & Dr. Master: BROWN GRUTTADARO GAUJEAN & PRATO, LLC One North Broadway, Suite 1010 White Plains, New York 10601 (914)949-5300 Joseph E. Capella, J.
The following papers numbered 1 to 3 read on this motion duly submitted on June 28, 2018, on the Motion Calendar of __________. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 ANSWERING AFFIDAVIT AND EXHIBITS 2 REPLY AFFIDAVIT AND EXHIBITS 3 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
The defendant, St. Barnabas Hospital, moves for summary judgment (CPLR 3212) and dismissal of the instant medical malpractice action on the premise that plaintiffs are unable to establish vicarious liability against it based on the alleged malpractice by defendant, Mumtaz Master, MD (Dr. Master). According to plaintiff, Mary Sanchez, she was experiencing frequent and painful contractions on October 11, 2013, and once she felt "heavy pain," she had her husband take her to the maternity (triage) room at St. Barnabas Hospital. The only attending obstetrician, Dr. Master, then admitted Mrs. Sanchez into the Labor and Delivery room. Mrs. Sanchez was placed on a fetal monitor, and continuous tracing began at 5:46 p.m. At 7:12 p.m., Dr. Master appeared in Mrs. Sanchez's room to review what a nurse had earlier described as minimal variability on the tracings. Dr. Master ordered resuscitation, and waited to see if the tracings improved. At 7:50 p.m., the tracings had absent variability with a baseline of 110 beats per minute, and these non-reassuring findings prompted Dr. Master to do an emergency Cesarean section. The complaint alleges that defendants negligently managed the labor of Mrs. Sanchez, and the delivery of infant-plaintiff, J.S., on October 11, 2013, resulting in infant-plaintiff suffering, inter alia, neurological and developmental delays. To find St. Barnabas Hospital responsible will necessitate the establishment of vicarious liability and a viable claim against the treating physician. (Polano v Christakos, 104 AD3d 501 [1st Dept 2013]; Magriz v St. Barnabas, 43 AD3d 331 [1st Dept 2007].) The motion papers, however, do not attempt to determine whether Dr. Master was negligent, and the opposition papers make it clear that plaintiffs have no direct negligence claims against St. Barnabas Hospital or its staff. Hence, the issue raised in this motion is not whether Dr. Master was negligent, but whether St. Barnabas can be held vicariously liable for Dr. Master's alleged (emphasis added) negligence.
The action was discontinued against co-defendant, Rodney Capiro, MD.
There is no dispute that Dr. Master is employed by defendant, St. Barnabas OB/GYN, P.C. (St. Barnabas OB/GYN), and that she had privileges at St. Barnabas Hospital. Dr. Master was the sole attending obstetrician on the date in question, but she is not an employee of St. Barnabas Hospital. As such, 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].) However, exceptions to this general rule exist in that hospitals may be held vicariously liable 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].) Here, the evidence reveals that agency/control in fact does not apply because Dr. Master was in complete charge of the labor and delivery, and neither St. Barnabas Hospital nor its staff exercised any supervision or control over Dr. Master (Id).
Hospitals may still be responsible for the acts of a private attending physician under the theory of apparent/ostensible agency. Under this theory, vicarious liability exists where a patient, in accepting treatment from the private physician, relies upon the fact that the services are being provided by the physician as the hospital's apparent agent, such as where a patient comes to the emergency room seeking treatment from the hospital (emphasis added) and not from a particular physician of the patient's choosing. (Polgano v Christakos, 104 AD3d 501 [1st Dept 2013].) According to St. Barnabas Hospital, apparent/ostensible agency also does not apply because Mrs. Sanchez saw Dr. Master one time prenataly at St. Barnabas OB/GYN; therefore, the treatment she received at St. Barnabas Hospital was from one of her own obstetricians. (Klippel v Rubinstein, 300 AD2d 448 [2nd Dept 2002]; Gardner v Brookdale, 73 AD3d 1124 [2nd Dept 2010].) Given the aforementioned, the court is satisfied that St. Barnabas Hospital has established an entitlement to summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Sillman v Twentieth Century-Fox, 3 NY2d 395 [1957]), thereby shifting the burden to plaintiffs to demonstrate that issues of fact exist to warrant a trial. (Kosson v Algaze, 84 NY2d 1019 [1995].) Keep in mind that 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]), and the evidence must be construed in a light most favorable to the one moved against. (O'Sullivan v Presbyterian, 217 AD2d 98 [1st Dept 1995].) And because summary judgment is a drastic remedy, it should not be granted where the Court is in doubt as to the existence of a triable issue (Rotuba v Ceppos, 46 NY2d 223 [1978]).
Where as here control in fact is absent, then liability may still exist under the theory of apparent/ostensible agency, which focuses on whether Mrs. Sanchez could have reasonably believed based upon the surrounding circumstances that Dr. Master was provided to her by St. Barnabas Hospital or was otherwise acting on the hospital's behalf. (Thurman v United, 39 AD3d 934 [3rd Dept 2007].) In analyzing this issue, it bears noting that St. Barnabas Hospital was under no obligation to affirmatively disclaim Dr. Master as an independent contractor in order to avoid the creation of apparent/ostensible agency. (Id.) 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.) As already noted, 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-Dr. Rubinstein 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-Brookdale 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 him and ordered numerous diagnostic tests.
It is clear from the plaintiffs' opposition papers that they believe vicarious liability does exist under the theory of apparent agency, and that Klippel, Gardnerand Thurman should not apply because the facts in this action are different. According to Mrs. Sanchez, who utilized the services of an English language translator during her depositions, she believed that Dr. Master was treating her on behalf of St. Barnabas Hospital. She also believed that her prenatal clinic (i.e., St. Barnabas OB/GYN) was part of and affiliated with St. Barnabas Hospital. It appears that on at least three occasions, Mrs. Sanchez received prenatal treatment from various doctors employed by St. Barnabas OB/GYN; however, it does not appear that she was able to recall many of these doctors' names. According to Dr. Master, there was no particular doctor employed by St. Barnabas OB/GYN that was assigned to Mrs. Sanchez as her primary care physician. Dr. Master testified that she saw Mrs. Sanchez on one occasion in August 2013 for a prenatal visit at St. Barnabas OB/GYN, which was located inside St. Barnabas Hospital's Labor and Delivery room.
Unlike Klippel and Thurman, Mrs. Sanchez was not admitted and treated by a primary care physician, and unlike Klippel, it does not appear that Mrs. Sanchez went to St. Barnabas Hosptial for a routine labor and delivery. The facts in this action are also different from Gardner, where the plaintiff-mother received prenatal care at a HIP Center, which had a clearly distinguishable name (and most likely a distinguishable location) from defendant-Brookdale Hospital. And unlike Gardner, Dr. Master was not on-call from St. Barnabas OB/GYN, and did not go to St. Barnabas Hospital to specifically treat Mrs. Sanchez, but was merely working her regular shift at St. Barnabas Hospital. Under these set of facts, it is not entirely clear that Mrs. Sanchez should have known that St. Barnabas Hospital and St. Barnabas OB/GYN were two distinct entities. This is especially true when you consider the name similarities and that her earlier prenatal care visit took place in the Labor and Delivery room of St. Barnabas Hospital. Even assuming that she should have known, there is no evidence to suggest that Mrs. Sanchez expected one of the doctors from St. Barnabas OB/GYN to meet her at St. Barnabas Hospital to deliver her child. Her testimony merely suggests that she went to St. Barnabas Hospital for treatment by the hospital. (Mbuda v Benedictine, 52 AD2d 450 [3rd Dept 1976].) While one could argue that the factual differences in the aforementioned cases to the instant action may be too subtle, viewing the evidence in a light most favorable to the plaintiffs, (O'Sullivan v Presbyterian, 217 AD2d 98), this Court is of the opinion that a jury could find that it was reasonable for Mrs. Sanchez to believe (a) that St. Barnabas OB/GYN and St. Barnabas Hospital were essentially one in the same, and (b) that Dr. Master was treating her on behalf of St. Barnabas Hospital. (Hallock v State of New York, 64 NY2d 224 [1984].) Given that summary judgment is such a drastic remedy and this Court is in doubt as to the existence of a triable issue, (Rotuba v Ceppos, 46 NY2d 223), the instant motion for same is denied.
The plaintiffs are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: August 8, 2018 Hon. Joseph E. Capella, J.S.C.