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PLAINTIFF’S DECEDENT WAS TAKEN TO THE DEFENDANT HOSPITAL’S EMERGENCY ROOM AND WAS OPERATED ON BY AN INDEPENDENT SURGEON; PLAINTIFF DEMONSTRATED THE EMERGENCY ROOM EXCEPTION APPLIED AND THE HOSPITAL WAS VICARIOUSLY LIABLE FOR THE SURGEON’S ALLEGED MALPRACTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff demonstrated the emergency room exception applied and defendant hospital could be held vicariously liable for the alleged malpractice an independent surgeon:

In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for the negligence or malpractice of an independent physician, as when the physician is retained by the patient himself or herself … . However, as an exception to this rule, a hospital may be held vicariously liable for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician … .

Here, the plaintiff satisfied her prima facie burden of demonstrating that the emergency room exception applies by producing evidence that the decedent was brought to the Hospital’s emergency room by ambulance, did not request treatment by a particular physician, and was assigned to Reichman’s care by the Hospital … . Goffredo v St. Luke’s Cornwall Hosp., 2021 NY Slip Op 02788, Second Dept 5-5-21

 

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