Hill v. St. Clare's Hosp.

• Citation: 499 N.Y.S.2d 904,490 N.E.2d 823,67 N.Y.2d 72
• Parties: , 490 N.E.2d 823 Birdell HILL et al., Respondents, v. ST. CLARE'S HOSPITAL et al., Appellants, et al., Defendant.
• Decision Date: 19 February 1986
• Court: New York Court of Appeals

Page 904

499 N.Y.S.2d 904

67 N.Y.2d 72, 490 N.E.2d 823

Birdell HILL et al., Respondents, v. ST. CLARE'S HOSPITAL et al., Appellants, et al., Defendant.

Court of Appeals of New York.

Feb. 19, 1986.

Stuart E. Kahan and Marshal S. Endick, New York City, for St. Clare's Hosp., appellant.

Lawrence M. McKenna, New York City, for Rudolph F. Bono, appellant.

Herman Schmertz, New York City, for respondents.

OPINION OF THE COURT

MEYER, Judge.

Involved in this appeal are questions of vicarious liability of a physician operating a clinic and of the effect with respect to a successive tort-feasor of a release given to the original tort-feasor. As to the first, we conclude that a physician who owns a medical clinic which is held out to the public as offering medical services may be held vicariously liable for the malpractice of a treating doctor even though the owner-physician neither participates in nor controls the diagnosis made or treatment prescribed. As to the second, we hold that General Obligations Law § 15-108(a) imposes upon the plaintiff who releases the original tort-feasor the burden of proving the extent to which his release reduces his claim against a hospital or physician who through malpractice aggravates the original injuries. The order of the Appellate Division, 107 A.D.2d 557, 483 N.Y.S.2d 695, should, therefore, be modified and the case remitted to Supreme Court, New York County, for a further hearing on the effect of plaintiff's release of the original tort-feasors and, as so modified, should be affirmed, with costs to plaintiff against defendant Bono and costs to defendant St. Clare's Hospital against plaintiff.

I

Plaintiff Birdell Hill was injured on June 30, 1972, when a sidewalk elevator plummeted some 18 feet into a subcellar, causing pain in his feet, shoulder and wrist. He was taken to St. Clare's Hospital, where his feet were X-rayed, but was told by the hospital doctors that no bones were broken and that he had suffered "soft tissue injury." His right ankle was wrapped in an ace bandage and he was given a cane and told to see a "company doctor."

Some years before, Hill had been a patient at The Benjamin A. Gilbert Medical Clinic, an industrial medical practice then run by Dr. Gilbert, and he had also taken an injured co-worker to that clinic for treatment. On the day following his own injury, Hill went to the Gilbert Clinic. The clinic had been run by Dr. Benjamin Gilbert for some 40 years on West 45th Street in Manhattan. Faced with the need for emergency surgery and concerned lest his patients turn to other physicians during his absence, Dr. Gilbert asked defendant Bono, a friend and practicing physician, to use the name Benjamin A. Gilbert Medical Clinic while he was incapacitated. Dr. Bono agreed and began to use the name of the clinic at a suite of offices leased by him on West 44th Street. He also arranged for two secretaries and two physicians (Carranza and De Nalfi) formerly with Dr. Gilbert to move into the West 44th Street offices, where all three physicians treated their own patients as well as those of Dr. Gilbert. Dr. Gilbert never practiced at the West 44th Street office, however, because the ailment which caused his hospitalization proved fatal.

Plaintiff knew none of the clinic doctors by name when he visited the clinic the day following his injury and it is undisputed that he was never seen professionally by Dr. Bono at the clinic or elsewhere. On his first visit he was seen by either Dr. Carranza or Dr. De Nalfi, who looked at his wrist and ankle and requested the hospital X rays. Several days later, after obtaining the hospital X rays and taking a second set of his own, Dr. Carranza applied a cast to plaintiff's right foot. Plaintiff testified that in addition to the fact that his right foot "looked funny" and was "curved toward the right," the large toe of his left foot was "sticking up a bit." He visited the clinic on five or six other occasions through early August, when Dr. Carranza referred him to Dr. Selig Strax.

Dr. Strax testified that plaintiff suffered not only fractures of the second, third and fourth metatarsal bones of his right foot but also a complete dislocation of his left great toe which had not been diagnosed by St. Clare's Hospital or by either Dr. Carranza or Dr. De Nalfi, that plaintiff's having attempted to walk on the foot for six or seven weeks following the injury had necessitated surgery and had resulted in a permanent deformity, known as a "hammer toe," as well as other complications.

Hill and his wife, Mamie, as derivative plaintiff, began lawsuits against the owner and operator of the building in which he was injured, the elevator manufacturer and the manufacturer of the elevator's gears (hereafter original tort-feasors). Some time thereafter, the present action was separately begun by the same two plaintiffs against St. Clare's Hospital and Drs. Bono and Carranza, ¹ doing business as The Benjam A. Gilbert Medical Clinic. Prior to trial of the present action the action against the original tort-feasors was settled with respect to both plaintiffs for a total of $57,000. They executed a general release containing no reservation of rights or allocation of damages as between plaintiffs or as to injuries, although the amount paid by each of the contributing defendants was set forth in it. The defendants in the present action were permitted during trial to amend their answers to assert the release as an affirmative defense, and a hearing on the question was held by the Trial Judge pursuant to CPLR 4533-b at which plaintiff testified, the bills of particulars in the prior actions were introduced, and plaintiffs' attorneys conceded that the claim made against the original tort-feasors included the aggravation of Birdell Hill's injuries by the present defendants and that the release given was "a release of all claims asserted in the action against them." The Trial Judge, concluding that the burden of proof was upon defendants to establish what portion of the prior settlement, if any, was for the derivative plaintiff, what portion was for injuries to portions of Birdell Hill's body not involved in the present action, and what portion was for the present defendants' aggravation of the original injuries to his left foot, denied any offset for the prior settlement.

At the close of plaintiffs' case and at the close of the entire case, defendant Bono moved to dismiss on the ground that he had never seen Birdell Hill professionally and that Dr. Carranza was an independent contractor. The motion was denied and the case went to the jury under a charge, ² to which Dr. Bono excepted, that a clinic which furnishes an independent doctor to perform services at that clinic is responsible for the negligence of that doctor. The jury found in favor of Birdell Hill against both defendants in the amount of $200,000, apportioning liability of 30% to St. Clare's Hospital and 70% to Dr. Bono, but found in favor of defendants on Mamie Hill's derivative claim. The Trial Judge ordered a new trial on damages unless Birdell Hill agreed to accept $132,340, which he did, and set aside the defendants' verdict against Mamie Hill as against the weight of the evidence. ³

On appeal by defendants to the Appellate Division, that court affirmed, holding unanimously (although by a 3 to 2 split as to the reasons) that denial of any offset for the settlement with the original tort-feasors was proper and, over the dissent of the two of its members, that sufficient evidence had been presented to require submission to the jury of the question of Dr. Bono's liability for the negligent acts of Dr. Carranza. Defendant Bono both appealed as of right and moved before the Appellate Division for leave to appeal, apparently to obviate any finality question resulting from the stipulation deferring the new trial as to Mamie Hill. ⁴ We granted St. Clare's motion so that both defendants involved in the offset issue would be before us. For the reasons that follow, we conclude that the question of Dr. Bono's liability was properly submitted to the jury but that the courts below erred in holding that defendants bore the burden of proving what was cover by the release given to the original tort-feasors. We, therefore, modify the order of the Appellate Division and remit the case to Supreme Court, New York County, for further hearing on the release issue pursuant to CPLR 4533-b and, as so modified, affirm.

II

A

Although a hospital or other medical facility is liable for the negligence or malpractice of its employees (Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3), that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient himself (Fiorentino v. Wenger, 19 N.Y.2d 407, 414, 280 N.Y.S.2d 373, 227 N.E.2d 296; see, Topel v. Long Is. Jewish Med. Center, 55 N.Y.2d 682, 683, 446 N.Y.S.2d 932, 431 N.E.2d 293), unless the hospital knows that the patient is unaware of the dangers and novelty of the medical procedure proposed to be performed (Fiorentino v. Wenger, 19 N.Y.2d, at p. 417, 280 N.Y.S.2d 373, 227 N.E.2d 296, supra; see, Ann., 12 A.L.R.4th 57). Nor is affiliation of a doctor with a hospital or other medical facility, not amounting to employment, alone sufficient to impute the doctor's negligent conduct to the hospital or facility (see, Ruane v. Niagara Falls Mem. Med. Center, 60 N.Y.2d 908, 470 N.Y.S.2d 576, 458 N.E.2d 1253; McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108). Thus, a hospital may not be held for the acts of an anesthetist who was not an employee of the hospital, but one of a group of independent contractors (Holzberg v. Flower & Fifth Ave. Hosps., 32 N.Y.2d 716, 344 N.Y.S.2d 3, 296 N.E.2d 804, affg. 39 A.D.2d 526, 330 N.Y.S.2d 682), and when physicians share office space and by agreement service each other's patients for a shared fee, the malpractice of the treating...