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McDonald v. Ambassador Construction Company

Appellate Division of the Supreme Court of New York, First Department
Jun 15, 2000
273 A.D.2d 108 (N.Y. App. Div. 2000)

Opinion

June 15, 2000.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered October 27, 1999, which, insofar as appealed from, denied defendant hospital's motion for summary judgment dismissing the cause of action against it for medical malpractice, unanimously affirmed, without costs.

Joseph R. Bongiorno, for plaintiff-respondent.

Lisa E. Mudd, for defendant-appellant.

Before: Rosenberger, J.P., Tom, Mazzarelli, Andrias, Saxe, JJ.


Plaintiff entered defendant hospital through its emergency room, where she was examined and treated by defendant physician, who was "on call". Plaintiff had no prior relationship with defendant physician and did not request or explicitly consent to treatment by a particular physician in the emergency room. Defendant physician performed surgery on plaintiff the following day at defendant hospital, where she remained for five weeks before being transferred to another hospital where she was also treated by defendant physician. Such circumstances are consistent with a reasonable belief on plaintiff's part that defendant physician was acting on defendant hospital's behalf when he allegedly committed malpractice shortly after the surgery by failing to take certain additional medical measures (cf., Soltis v. State of New York, 172 A.D.2d 919). Unless the hospital shows that such belief was unreasonable, it can be held vicariously liable for this alleged malpractice by the physician, notwithstanding that he was actually an independent contractor (see, id.; see also, Citron v. Northern Dutchess Hosp., 198 A.D.2d 618, 620, lv denied 83 N.Y.2d 753;Delprete v. Victory Mem. Hosp., 191 A.D.2d 673; Abraham v. Dulit, 255 A.D.2d 345). Upon this record, the hospital has not demonstrated, as a matter of law, that it was unreasonable for plaintiff to believe, at the time of the alleged malpractice, that the physician was acting on the hospital's behalf.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

McDonald v. Ambassador Construction Company

Appellate Division of the Supreme Court of New York, First Department
Jun 15, 2000
273 A.D.2d 108 (N.Y. App. Div. 2000)
Case details for

McDonald v. Ambassador Construction Company

Case Details

Full title:KAY McDONALD, PLAINTIFF-RESPONDENT, v. AMBASSADOR CONSTRUCTION COMPANY…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 15, 2000

Citations

273 A.D.2d 108 (N.Y. App. Div. 2000)
709 N.Y.S.2d 177

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