ALTHOUGH PLAINTIFF’S EXPERT WAS NOT BOARD CERTIFIED IN EMERGENCY MEDICINE, THE EXPERT SET FORTH A SUFFICIENT FOUNDATION FOR THE OPINION; THE HOSPITAL DID NOT DEMONSTRATE IT COULD NOT BE HELD VICARIOUSLY LIABLE FOR TREATMENT BY AN INDEPENDENT PHYSICIAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s medical expert need not be board certified in emergency medicine to be qualified to offer an opinion. The hospital did not demonstrate it could not be held vicariously liable for the care provided by an independent physician:

Contrary to the defendants’ contention, the plaintiffs’ expert was qualified to offer an opinion despite not being board certified in emergency medicine. “‘A physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge . . . [or] expertise goes to the weight and not the admissibility of the testimony'” … . Here, the plaintiffs’ expert set forth a sufficient foundation for his or her opinion, based on his or her clinical experience and familiarity with the applicable standards of care … . …

… [G]enerally, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient … . “However, an exception to the rule that a hospital may not be held vicariously liable for the treatment provided by an independent physician applies where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing, or a nonemployee physician otherwise acted as an agent of the hospital or the hospital exercised control over the physician” … . Here, the defendants failed to demonstrate, prima facie, that [the hospital] was free from vicarious liability for [plaintiff’s] care and treatment in its emergency department as a matter of law … . Valitutto v Staten Is. Univ. Hosp., 2026 NY Slip Op 03020, Second Dept 5-13-26

Practice Point: Here plaintiff’s expert was qualified to offer an opinion despite not being board certified in emergency medicine.

Practice Point: Here the hospital did not demonstrate it could not be held vicariously liable for treatment by an independent physician.