PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).
The Second Department, modifying Supreme Court, determined (1) the plaintiff’s expert did not raise a question of fact about the quality of care provided by two of the defendants because he did not specialize in emergency medicine and didn’t indicate he had familiarized himself with the standard of care in that specialty, and (2) there was a question of fact whether the emergency exception applied to the general rule that a hospital is not vicariously liable for the treatment provided by private attending physicians:
” … [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. …
“As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee” … . However, “an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Here, the hospital established its prima facie entitlement to judgment as a matter of law by its submission of the deposition testimony of the doctors and physician’s assistant involved in the plaintiff’s care, which indicated that they were not employees of the hospital … .
In opposition, however, the plaintiffs raised a triable issue of fact as to whether the hospital could be held vicariously liable for the medical malpractice of the individuals involved in the plaintiff’s care as independent contractors, based upon the emergency room exception … . Galluccio v Grossman, 2018 NY Slip Op 03664, Second Dept 5-23-18
NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EMERGENCY EXCEPTION (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/HOSPITAL (MEDICAL MALPRACTICE, EMERGENCY EXCEPTION, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))