Hospital Not Vicariously Liable for Acts of Non-Employee Midwife/Hospital May Be Liable for Staff’s Failure to Summon Obstetrician When Problems with the Birth Developed/Midwife’s Assistant, Who Worked Under the Supervision of the Midwife and Did Not Exercise Independent Judgment, Not Liable

The Second Department determined: (1) the hospital (Phelps) defendants were not vicariously liable for the actions of a midwife who was not an employee; (2) there was a question of fact whether the hospital staff was negligent in failing to summon an obstetrician when problems with the birth developed; and (3) the action against the midwife’s assistant (Milligan) was properly dismissed because the assistant worked under the supervision of the midwife and did not exercise independent judgment:

In general, “a hospital may not be held [liable] for the acts of [a physician] who was not an employee of the hospital, but one of a group of independent contractors” … . However, a hospital can be held concurrently liable with a private attending physician if its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice … . “When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene”  * * *

The Supreme Court erred in granting that branch of the Phelps defendants’ motion which was for summary judgment dismissing so much of the complaint as alleged they were concurrently liable with Mahoney for the alleged independent negligence of their nursing staff. In opposition to the Phelps defendants’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether the Phelps defendants’ nursing staff departed from good and acceptable medical practice by failing to summon an obstetrician when the infant plaintiff’s fetal heart rate dropped below normal… . …

Milligan met her prima facie burden of demonstrating that, during the infant plaintiff’s birth, she did not exercise any independent medical judgment, but was under the direct supervision of Mahoney, the attending nurse-midwife, whose directions did not so greatly deviate from normal medical practice that she should be held liable for failing to intervene. Zhuzhingo v Milligan, 2014 NY Slip Op 07350, 2nd Dept 10-29-14