Hospital Employees, Working With a Non-Employee Attending Physician, Were Not Independently Negligent and Were Not Asked to Follow Orders Which Were Contrary to Normal Practice—Summary Judgment Dismissing Complaint Against Hospital Should Have Been Granted

The Second Department determined defendant hospital (Good Samaritan) was entitled to summary judgment dismissing the complaint. The hospital was not concurrently liable re: conduct of a non-employee attending physician (Schneider) because there was no showing hospital employees acted negligently independently or followed orders made by the attending physician which were contrary to normal practice:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence” … . “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” … . Here, the evidence submitted by Good Samaritan established, prima facie, that there were no independent acts of medical judgment on the part of Good Samaritan or its employees apart from following the orders of Schneider, who was the plaintiff’s private attending physician. Nor were Schneider’s orders contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders. Tomeo v Beccia, 2015 NY Slip Op 03350, 2nd Dept 4-22-15