Opinion
CA 02-00664
October 1, 2002.
Appeal from an order of Supreme Court, Steuben County (Bradstreet, J.), entered December 7, 2001, which denied the motion of defendant St. James Mercy Hospital seeking summary judgment dismissing the first amended complaint against it.
DAMON MOREY, LLP, BUFFALO (AMY ARCHER FLAHERTY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FARACI LANGE, LLP, ROCHESTER (STEPHEN G. SCHWARZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied the motion of defendant St. James Mercy Hospital (Hospital) seeking summary judgment dismissing the first amended complaint against it as time-barred. Plaintiff commenced this medical malpractice action against an anesthesiologist and the Hospital to recover damages for a nerve injury allegedly sustained during surgery. The Hospital's alleged liability is vicarious only, pursuant to the theory of "ostensible agency" arising from the Hospital's assignment of the anesthesiologist to provide anesthesiologist services for the surgery ( Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79; see Agustin v. Beth Israel Hosp., 185 A.D.2d 203, 205-206; see generally Mduba v. Benedictine Hosp., 52 A.D.2d 450, 453-454). The nerve injury was treated for several years after the surgery by plaintiff's primary care physician, who is employed by the Hospital as its medical director.
We conclude that there is an issue of fact whether the Hospital is estopped from asserting the statute of limitations as an affirmative defense by virtue of the alleged conduct of its medical director during her postoperative treatment of plaintiff as plaintiff's primary care physician ( see generally Simcuski v. Saeli, 44 N.Y.2d 442, 448-451). We disagree with plaintiff, however, that there is an issue of fact whether the statute of limitations was tolled by operation of the continuous treatment doctrine. Although plaintiff's primary care physician is the medical director of the Hospital, the postoperative care that she provided cannot be imputed to the Hospital for purposes of the continuous treatment doctrine because plaintiff's claim against the Hospital is vicarious only, arising from the Hospital's relationship with the anesthesiologist, and there is no proof of a relevant relationship between the primary care physician and the anesthesiologist ( see Walsh v. Faxton-Children's Hosp., 192 A.D.2d 1106, 1106-1107; see also Meath v. Mishrick, 68 N.Y.2d 992, 994; Colon v. City of New York, 287 A.D.2d 591; DiFilippi v. Huntington Hosp., 203 A.D.2d 321, 321-322). Champagnie v. State of New York ( 224 A.D.2d 476) is distinguishable because, according to the record on appeal, the physician who provided the continuous treatment in that case was also the physician allegedly responsible for the malpractice.
We further disagree with plaintiff that there is an issue of fact whether the statute of limitations was tolled under a "continuous-treatment-by-institution" theory. Even assuming, arguendo, that such a theory is valid ( but see Ganess v. City of New York, 85 N.Y.2d 733, 737-739 [Titone, J., concurring]; Plummer v. New York City Health Hosps. Corp., 285 A.D.2d 374, 375-380 [dissenting mem], revd on other grounds 98 N.Y.2d 263), we conclude that it would not apply here inasmuch as plaintiff was admitted to the Hospital by the surgeon upon a referral from the primary care physician, who provided the postoperative treatment.