King v. Mitchell

• Decision Date: 13 July 2006
• Docket Number: 99762.
• Citation: 31 A.D.3d 958,2006 NY Slip Op 05718,819 N.Y.S.2d 169
• Parties: ASHLEY KING, Respondent, v. ROBERT MITCHELL et al., Defendants, and CAYUGA MEDICAL CENTER AT ITHACA, Appellant.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 958

819 N.Y.S.2d 169

2006 NY Slip Op 05718

ASHLEY KING, Respondent, v. ROBERT MITCHELL et al., Defendants, and CAYUGA MEDICAL CENTER AT ITHACA, Appellant.

99762.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 13, 2006.

Appeal from an order of the Supreme Court (Mulvey, J.), entered August 30, 2005 in Tompkins County, which denied a motion by defendant Cayuga Medical Center at Ithaca for partial summary judgment.

Spain, J.

In this action plaintiff seeks to recover damages for injuries sustained allegedly due to the negligence of her anesthesiologist, defendant Robert Mitchell. The sole issue on appeal is whether defendant Cayuga Medical Center at Ithaca can be held vicariously liable for Mitchell's allegedly tortious actions.

After her family physician detected a tumor in plaintiff's chest cavity, he referred her to a neurosurgeon who in turn referred her to general surgeon David Schwed. Plaintiff's mother, Susan King, rendered the medical decisions for then 17-year-old plaintiff. King accepted Schwed's recommendation that plaintiff undergo surgery and, with King's consent, Schwed admitted plaintiff to Cayuga on February 4, 2003 and performed the surgery to remove the tumor. At Cayuga prior to the surgery, Mitchell introduced himself to plaintiff and King as the anesthesiologist who would be providing anesthesia during plaintiff's surgery. Mitchell was not a Cayuga employee, but a partner in an independent group of anesthesiologists who had privileges to practice at Cayuga. Following the surgery, plaintiff developed surgical hematoma and, as a result, is a permanent paraplegic.

On plaintiff's behalf, King commenced this action alleging that plaintiff's injuries were caused by the negligence of Mitchell, his practice and Cayuga. After plaintiff reached the age of majority, the complaint was amended to name her the party plaintiff and to add a claim for vicarious liability against Cayuga on the theory that Mitchell, the anesthesiologist, was an ostensible agent of Cayuga. Cayuga moved for partial summary judgment dismissing the vicarious liability cause of action. Supreme Court denied the motion, finding that a genuine issue of material fact exists as to whether an apparent or ostensible agency relationship arose between Mitchell and Cayuga, such that Cayuga may be held vicariously liable for the alleged negligence of Mitchell. On Cayuga's appeal, we now reverse.

As a general proposition, "[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" (Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). Vicarious liability for medical malpractice may be imposed, however, under an apparent, or ostensible, agency theory, "or, as it is sometimes called, agency by estoppel or by holding out" (id.). "`Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority' to act on behalf of the principal" (Searle v Cayuga Med. Ctr. at Ithaca, 28 AD3d 834, 836 [2006], quoting Hallock v State of New York, 64 NY2d 224, 231 [1984]). Also, the third party must reasonably rely upon the appearance of authority created by the principal (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252 n 3 [2002]; Hallock v State of New York, supra at 231). Finally, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal (see N.X. v Cabrini Med. Ctr., supra at 252 n 3; Hill v St. Clare's Hosp., supra at 82). To state a viable claim based on ostensible agency, it was thus necessary for plaintiff to set forth facts sufficient to support the conclusion that Cayuga, as opposed to Mitchell, engaged in some misleading conduct upon which plaintiff and King reasonably relied when they decided to accept medical services from Mitchell (see Merrell-Benco Agency, LLC v HSBC Bank USA, 20 AD3d 605, 608 [2005], lv dismissed and denied 6 NY3d 742 [2005]; see also Ford v Unity Hosp., 32 NY2d 464, 473 [1973]).

The facts which plaintiff alleges to support her claim that Cayuga was "holding out" Mitchell as its employee or agent are that (1) the questionnaire and consent forms related to anesthesia were printed on forms with Cayuga's logo, (2) such forms did not affirmatively state that Mitchell was not a Cayuga employee, and (3) Cayuga's Web site describes Cayuga as having an anesthesiology department, and includes contact information for Mitchell at Cayuga. Inasmuch as plaintiff failed to raise this last issue before the trial court and, in any event, no evidence exists that plaintiff or King ever accessed Cayuga's Web site to obtain information on Mitchell, the Web site cannot provide a foundation for conduct upon which they reasonably relied (see N.X. v Cabrini Med. Ctr., supra at 252 n 3).

Moreover, although it would—unquestionably—be preferable for hospitals to clarify in their informational and consent forms the status of those physicians enjoying privileges at the...