Defendant New York Community Hospital of Brooklyn, Inc., (NYCHB) moves for an Order granting summary judgment in its favor. Plaintiff cross-moves for leave to file a late cross motion for summary judgment and for an Order granting summary judgment in her favor as against NYCHB based on principles of ostensible agency and for an order granting summary judgment in its favor as against Third-Party Defendant Donald Dunac, M.D. Opposition is submitted to plaintiff's cross motion by Brooklyn Kings Highway Anesthesiologists LLP and Dr. Dunac and by NYCHB.

NOW, upon the foregoing and oral argument on March 21, 2013 and due deliberation had thereon, the motion of Defendant New York Community Hospital of Brooklyn, Inc for summary judgment is GRANTED to the extent of dismissing all claims arising from the acts of its employees. Plaintiff's cross-motion for summary judgment against New York Community Hospital of Brooklyn is DENIED in all respects in accordance with this decision.

This is an action sounding in medical malpractice wherein plaintiff claims, inter alia, that defendant New York Community Hospital of Brooklyn (NYCHB) is vicariously liable for the acts and omissions of Third-Party Defendant anesthesiologist David Dunac, M.D based on the theory of Ostensible or Apparent agency. Plaintiff attributes vicarious liability to NYCHB for the acts of Dr. Dunac claiming that he departed from the standard of care by improperly administering Versed and Propofol to the decedent during an endoscopy procedure at NYCHB, causing injury and death. Plaintiff does not address the acts of third-party defendant Dr. Sonsky in her cross motion. Dr Sonsky is a gastroenterologist who performed an endoscopy procedure during which decedent sustained a cardio-pulmonary arrest.

This action was commenced against NYCHB by the filing of a Summons and Complaint on or about January 3, 2007. Although David Dunac, M.D. and Alan Sonsky, M.D. were named defendants in that action, personal jurisdiction over both of them was not obtained and plaintiff is [*2]now time bared from doing so. On September 22, 2010, NYCHB filed a Third-Party Summons and Complaint impleading Brooklyn Kings Highway Anesthesiologists, LLP (BKHA), David Dunac, M.D. and Alan Sonsky, M.D. and Alan Sonsky, M.D., P.C. as third-party defendants.

The decedent in this case, Jeanne Nelson, was brought to NYCHB by ambulance complaining of shortness of breath on November 23, 2004 at 3:36 a.m. At the time of her admission, NYCHB personnel became aware that nonparty physician, Dr. Nozad, an attending at the hospital, had previously treated the patient. Plaintiff claims that based on this information the hospital assigned Ms. Nelson to Dr. Nozad's service. On admission, Ms. Nelson was noted to have a history of congestive heart failure, diabetes and dilated cardiomyopathy. After a physical examination, Dr. Nozad diagnosed her with congestive heart failure, adjusted her medications and ordered blood work and an abdominal sonogram. On November 26, 2004, Dr. Nozad ordered a gastroenterology consult which was performed by third-party defendant Dr. Sonsky. As part of his consultation, Dr. Sonsky recommended an endoscopic procedure. Dr. Nozad medically cleared the patient for the endoscopy.

Third-party defendant Dr. Dunac was assigned to administer anesthesia to Ms. Nelson during the procedure. Dr. Dunac was employed by BKHA. There is no dispute that Dr. Dunac was not an employee of NYCHB rather, he was a private attending with admitting privileges. Dr. Dunac, performed an anesthesiology pre-operative evaluation on the day of the procedure and determined that, on a scale of "I" to "V", the patient was a "IV" anesthesia risk, signifying that the patient was a poor risk for anesthesia. A consent form was signed by Ms. Nelson prior to the endoscopy. The anesthesia consent form used by Dr. Dunac was a plain sheet of paper bearing no letterhead nor logo. Dr. Dunac administered Versed and Propofol as anesthetic agents for the endoscopy on November 29, 2004. It is uncontroverted that no hospital employee administered anesthesia to Ms. Nelson. During the exploratory endoscopy, the patient became bradycardic, hypoxic and hypotensive and a code was called. Ms. Nelson died on January 14, 2005 allegedly as a result of the cardiopulmonary arrest she sustained during the endoscopy.

Plaintiff's request for leave to file a late cross motion for summary judgment is granted as the issues are so intertwined with the timely summary judgment motion that the court will entertain the cross motion. See, Lennard v. Khan, 69 AD3d 812 (2d Dept.2010).

On a cause of action sounding in medical malpractice, "the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage." Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009) citing, Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 842 (2d Dept. 2008); see Deadwyler v. North Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781 (2d Dept. 2008). "On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment." Rebozo v. Wilen, 41 AD3d 457, 458 (2d Dept. 2007); Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 (1986); Sheenan-Conrades v. [*3]Winifred Masterson Burke Rehabilitation Hosp., 51 AD3d 769, 770 ( 2d Dept. 2008); Thompson v. Orner, 36 AD3d 791, 792 (2d Dept. 2007); DiMitri v. Monsouri, 302 AD2d 420, 421 (2d Dept. 2003). The plaintiff, opposing a defendant physician's motion for summary judgment, must only submit evidentiary facts or materials to rebut the defendant's prima facie showing. Stukas v. Streiter, 83 AD3d 18 (2d Dept. 2011).

It is well established that hospitals are shielded from liability when its employees follow the orders of a private attending physician unless the latter's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into their correctness. Sela v. Katz, 78 AD3d 681 (2d Dept. 2010); Filippone v. St. Vincent's Hosp. & Med. Ctr. of NY, 253 AD2d 616, 618 (1st Dept. 1998). Here, defendant NYCBH, through its submissions, proved its prima facie entitlement to summary judgment as to claims against it for the acts of its employees by establishing that no orders given by doctors were so clearly contraindicated as to require NYMH employees to intervene and inquire as to the correctness of the orders. As plaintiff has not opposed this request for relief, summary judgment is granted as to NYCBH for claims against it for the acts of its employees; thus, these claims are dismissed.

Next, the Court must decide whether, as plaintff claims, NYCHB is vicariously liable for the acts of Dr. Dunac pursuant to principles of ostensible agency.

It is undisputed that Dr. Dunac was not an employee of the hospital. He was employed by BKHA, a professional partnership, that provided anesthesiology services to NYCHB. A contract setting forth the duties and responsibilities of the both entities delineated the parameters of the relationship. The contract required that BKHA designate a president and a vice president from the group to function as Director of Anesthesiology and Associate Director of Anesthesiology at NYCHB and that these appointments were subject to hospital approval; that the Director of the Anesthesia Department was accountable to the President and Chief Executive Officer of NYCBH; that BKHA ensured that the Director work full time for the NYCBH and devoted not less than 40 hours per week to the hospital or the hospital could terminate the agreement. The Director was responsible for preparing the budget and reports to NYCBH and was required to cooperate in the planning, investigating, selecting and installing of devices, equipment and systems to be used in the anesthesiology department of NYCBH and related departments including, but not limited to, Radiology, Respiratory Services, Pathology and other departments which overlap with Anesthesiology.

Additionally, the contract directed that NYCBH not simultaneously retain the services of another anesthesia provider. It required NYCBH to provide and maintain anesthesiology equipment and supplies for the proper functioning of BKHA within the Department. The hospital would provide technicians and other staff necessary for proper operation of the anesthesiology department. BKHA would be responsible for the scheduling and availability of its employees. BKHA was responsible for processing all witholding, social security payment and taxes on behalf of its employees. The contract specified that BKHA was an independent contractor to NYCHB and that BKHA not hold itself out as employees of the Hospital. BKHA was to remain solely responsible for its own tortious acts and the tortious acts of its employees.

Generally, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee. See, Mondello v. New York Blood Ctr.-Greater NY Blood Program, 80 NY2d 219, 228 (1992); Fiorentino v. Wenger, 19 NY2d 407 (1967); Cerny v. [*4]Williams, 32 AD3d 881, 882 (2d Dept. 2006); Christopherson v. Queens-Long Island Med. Group, P.C., 17 AD3d 393, 394 (2d Dept.2005); Woodard v. LaGuardia Hosp., 282 AD2d 529 (2d Dept 2001); Keitel v. Kurtz, 54 AD3d 387 (2d Dept 2008). The fact that doctors are affiliated with a hospital and have been granted admitting privileges has been held insufficient to impose vicarious liability on the hospital. Nagengast v Samaritan Hosp., 211 AD2d 878 (2d Dept. 1995); see, Hill v St. Clare's Hosp., 67 NY2d 72 (1986). However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing. Woodard v. LaGuardia Hosp., 282 AD2d 529, 530 (2d Dept 2001); Gardner v. Brookdale Hosp. Medical Center, 73 AD3d 1124, 1124 (2d Dept 2010).

It is also well-settled that apparent agency may be found when a hospital represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent. Hill v. St. Clare's Hosp., 67 NY2d 72 (1986). "(V)icarious liability for the medical malpractice of an independent, private attending physician may be imposed under a theory of apparent or ostensible agency by estoppel." Dragotta v. Southampton Hosp., 39 AD3d 697, 698 (2d Dept. 2007). In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all "attendant circumstances ... to determine whether the patient could properly have believed that the physician was provided by the hospital." Augeri v. Massoff, 134 AD2d 308 (2d Dept. 1987); Contu v. Albert, 18 AD3d 692, 693 (2d Dept. 2005); Sampson v Contillo, 55 AD3d 588, 590 (2d Dept. 2008).

The Second Department in Dragotta, supra, found that an issue of fact was raised as to whether the hospital was vicariously liable for the alleged malpractice of the anesthesiologist under a theory of apparent or ostensible agency. The court held that

In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill. There are two elements to such a claim of apparent or ostensible agency. To establish the "holding out" element, the misleading words or conduct must be attributable to the principal. To establish the "reliance" element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal. (Internal citations omitted). Dragotta, supra at 699.

The Court specified that "(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. (Internal citations omitted). Dragotta, supra at 699.

In so determining and finding an issue of fact, the Court in Dragotta noted that a contract between the hospital and the anesthesiology group prohibited the anesthesiologist in the group from practicing elsewhere without written permission and provided that the hospital only use the anesthesiologist from the group to administer anesthesia to its patients. The contract required that one of the group's members serve as the hospital's Director of the Department of Anesthesiology. All forms used by the anesthesiologists bore the letterhead or logo of the [*5]hospital. The patient met one of the anesthesiologists on the day of the surgery and never met a second anesthesiologist who took over during the operation. The Court found that the fact that the anesthesiologists must practice exclusively at the hospital and that the hospital may only use the group's anesthesiologists raised issues of fact as to whether the hospital was holding itself out as a provider of anesthesia services. Additionally, the fact that the forms and questionnaires used by the group and given to the decedent in that case contained the logo of the hospital together with evidence that pre-anesthesia testing may have taken place at the hospital raised an issue of fact as to whether the decedent reasonably believed that the anesthesiologists were provided by the hospital or acted on its behalf.

Similarly, relying on Dragotta the Second Department in Sampson v. Contillo, 55 AD3d 588 (2d Dept. 2008), found that the plaintiff raised an issue of fact as to whether the hospital may be vicariously liable for a radiologist's alleged malpractice under a theory of apparent or ostensible agency. The Court noted that the radiology group provided services for all the inpatients, outpatients and emergency room patients at the hospital. The radiologists did not provide radiology services to anybody who was not a patient at the hospital and, pursuant to their agreement, the radiology group could not take on outside work. The hospital owned the equipment that the group used and the X-rays were performed at the hospital.

In this case, an issue of fact was raised as to whether NYCBH held itself out a as a provider of anesthesia and whether the patient reasonably believed that the services of the anesthesiologist was provided by the hospital or acted on its behalf. Although BKHA and Dr. Dunac were not prohibited from practicing elsewhere and provided anesthesiologists to three other hospitals, the contract clearly states that NYCBH was required to exclusively engage the services of BKHA to provide anesthesia to its patients. It is noted that, pursuant to the agreement, a partner from the group serves as Director of the Anesthesiology Department of NYCBH and reports to the President, CEO and Board of Trustees of the hospital. Another partner from BKHA serves as Assistant Director of the Department of Anesthesiology. Under the provisions of the contract, all anesthesia equipment is owned by the hospital and the group is required to maintain and assist in maintaining proper staff and supplies.

Prior to administering anesthesia, Dr. Dunac performed his own evaluation of the patient which was recorded on the hospital's Anesthesia Preoperative Evaluation sheet. While the Anesthesia Preoperative Evaluation sheet contains the letterhead of the hospital, the anesthesiology informed consent sheet, which was undoubtedly signed by the patient, contains no letterhead or logo whatsoever. Thus, the nondescript anesthesia consent form presented no information for the patient to believe that the anesthesia services were provided by an entity other than the hospital.

Reviewing all the facts and circumstances before it, and notwithstanding the contract provisions requiring that the anesthesiologists not hold themselves out as employees, the court finds that the evidence submitted herewith raises an issue of fact as to whether the patient could have reasonably believed that Dr. Dunac was an employee of the hospital which would serve as the basis for plaintff's claim that Dr. Dunac is an ostensible agent of NYCBH. This issue of fact precludes granting plaintiff's cross motion for summary judgment against NYCBH, based on a theory of ostensible agency. This request for relief is therefor denied and the issue of fact is preserved for the trial of this matter. Accordingly, the action remains viable against defendant [*6]NYCBH.

Plaintiff's request for summary judgment in its favor directly against Dr. Dunac is denied. Plaintiff in this case does not have a direct claim against third-party defendant Dr. Dunac. Thus plaintiff has no standing to seek summary judgment against third-party defendant Dr. Dunac. A plaintiff may not recover directly from a third-party defendant over which it has no direct claim. Klinger v. Dudley, 41 NY2d 362 (1977); See, CPLR §1007, §1009; See also, Carollo v. Northern Westchester Hosp. Center, 5 AD3d 715 (2d Dept. 2004).

Additionally, even if plaintff had interposed a direct claim against Dr. Dunac, there are numerous questions of fact regarding the medical treatment rendered to Ms. Nelson which prevent a grant of summary judgment in plaintiff's favor.

This constitutes the decision, opinion and order of this Court.

ENTER,



HON. MARSHA L. STEINHARDT

J.S.C.