Keitel v. Kurtz

54 A.D.3d 387, 866 N.Y.S.2d 195
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 19, 2008
StatusPublished
Cited by21 cases

This text of 54 A.D.3d 387 (Keitel v. Kurtz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keitel v. Kurtz, 54 A.D.3d 387, 866 N.Y.S.2d 195 (N.Y. Ct. App. 2008).

Opinion

[388]*388In an action to recover damages for medical malpractice, etc., the plaintiff appeals, (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, Jr., J.), dated December 10, 2004, as granted the respective motions of the defendants Steven Litman and Long Island Anesthesia Physicians, LLP, the defendants Mark Tan, Rheumatology Associates of Long Island, Ronald S. Bennett, and Max I. Hamburger, and the defendants Charles Sitrin and Radiological Health Services, EC., doing business as the New York Imaging Center, for summary judgment dismissing the complaint insofar as asserted against them, granted the motion of the defendant St. Charles Hospital for summary judgment to the extent of determining that it is not vicariously liable for alleged departures in the standard of care by the attending physicians of the plaintiffs decedent, and granted that branch of the motion of the defendant Elliot Dreznick which was for summary judgment dismissing so much of the complaint as alleged departures from accepted medical practice other than those concerning the prescription of Prednisone from 1993 to 1994 by him, and (2) a judgment of the Supreme Court, Suffolk County, entered January 13, 2005, which, upon an order of the same court dated December 10, 2004, granting the motion of the defendant James Kelly for summary judgment dismissing the complaint insofar as asserted against him, dismissed the complaint insofar as asserted against that defendant and severed the action insofar as against that defendant, and the defendant Elliot Dreznick cross-appeals, as limited by his brief, from so much of the order dated December 10, 2004, as denied that branch of his motion which was for summary judgment dismissing so much of the complaint as alleged departures from accepted medical practice concerning the prescription of Prednisone from 1993 to 1994 by him. Justice Mastro has been [389]*389substituted for former Justice Crane, and Justice Santucci has been substituted for former Justice Schmidt (see 22 NYCRR 670.1 [c]).

Ordered that the order is modified, on the law, (a) by deleting the provision thereof granting that branch of the motion of the defendants Charles Sitrin and Radiological Health Services, EC., which was for summary judgment dismissing the complaint insofar as asserted against Radiological Health Services, EC., and substituting therefor a provision denying that branch of the motion, (b) by deleting the provision thereof granting that branch of the motion of the defendants Steven hitman and Long Island Anesthesia Fhysicians, LLE which was for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision denying that branch of the motion, (c) by deleting the provision thereof granting that branch of the motion of the defendants Rheumatology Associates of Long Island, Mark Tan, Ronald S. Bennett, and Max I. Hamburger which was for summary judgment dismissing the complaint insofar as asserted against Rheumatology Associates of Long Island, and substituting therefor a provision denying that branch of the motion, (d) by deleting the provision thereof granting that branch of the motion of the defendant St. Charles Hospital and Rehabilitation Center which was for summary judgment dismissing the complaint insofar as asserted against it on a theory of vicarious liability for the acts of the defendant Steven Sirota and substituting therefor a provision denying that branch of the motion, and (e) by deleting the provision thereof denying that branch of the motion of the defendant Elliot Dreznick which was for summary judgment dismissing so much of the complaint as alleged departures from accepted medical practice concerning the prescription of Frednisone from 1993 to 1994 by him and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the appeal from the judgment is dismissed as withdrawn pursuant to letter dated December 4, 2006, without costs or disbursements; and it is further,

Ordered that one bill of costs is awarded to the defendant Charles Sitrin payable by the plaintiff, one bill of costs is awarded to the defendants Mark Tan, Ronald S. Bennett, and Max I. Hamburger payable by the plaintiff, one bill of costs is awarded to the defendant Elliot Dreznick payable by the plaintiff, one bill of costs is awarded to the plaintiff payable by the defendant Radiological Health Associates, one bill of costs is [390]*390awarded to the plaintiff payable by the defendant Steven hit-man and Long Island Anesthesia Physicians, LLP, one bill of costs is awarded to the plaintiff payable by Rheumatology Associates of Long Island, and one bill of costs is awarded to the plaintiff payable by St. Charles Hospital and Rehabilitation Center.

The plaintiff alleges, inter alia, that the attending physicians of the plaintiffs decedent caused his injuries during a hospital admission for a second dislocation of his right hip prosthesis by, inter alia, failing to diagnose an infection, and failing to taper his prescription of Prednisone, following the revision of his right hip prosthesis after a bilateral hip replacement. The plaintiff asserts that the defendant St. Charles Hospital and Rehabilitation Center (hereinafter the hospital) is vicariously liable for the alleged malpractice of, among others, the defendant Stephen Sirota.

Generally, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee (see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219, 228 [1992]; Fiorentino v Wenger, 19 NY2d 407 [1967]; Cerny v Williams, 32 AD3d 881, 882; Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393, 394 [2005]; Woodard v LaGuardia Hosp., 282 AD2d 529 [2001]). Affiliation of a doctor with a hospital or other medical facility, not amounting to employment, is insufficient to impute the doctor’s negligent conduct to the hospital or the medical facility (see Hill v St. Clare’s Hosp., 67 NY2d 72 [1986]; Bertini v Columbia Presbyt. Med. Ctr., 279 AD2d 492 [2001]). However, “a hospital [is] responsible to a patient who sought medical care at the hospital. . . rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital” (Hill v St. Clare’s Hosp., 67 NY2d at 80-81; see Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d at 394).

Sirota, although a private physician not employed by the hospital, was assigned by the hospital as the attending physician of the plaintiff’s decedent while he recuperated in the hospital’s rehabilitation division. Thus, considering “all ‘attendant circumstances ... to determine whether the patient could properly have believed that the physician was provided by the hospital’ ” (Contu v Albert, 18 AD3d 692, 693 [2005], quoting Augeri v Massoff, 134 AD2d 308, 309 [1987]), the hospital failed to satisfy its prima facie burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]) with respect to the issue of [391]*391vicarious liability on the ground of apparent or ostensible agency with respect to the acts of Sirota (see Hill v St. Clare’s Hosp., 67 NY2d at 80-81; Abraham v Dulit, 255 AD2d 345 [1998]; Augeri v Massoff, 134 AD2d at 309).

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Cite This Page — Counsel Stack

Bluebook (online)
54 A.D.3d 387, 866 N.Y.S.2d 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keitel-v-kurtz-nyappdiv-2008.