Pasek v. Catholic Health Sys., Inc.

• Decision Date: 11 June 2021
• Docket Number: CA 19-01845,86
• Citation: 150 N.Y.S.3d 189,195 A.D.3d 1381
• Parties: Julie E. PASEK, Individually, and as Power of Attorney for James G. Pasek, Plaintiff-Appellant, v. CATHOLIC HEALTH SYSTEM, INC., Mercy Hospital of Buffalo, Defendants-Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1381
150 N.Y.S.3d 189

Julie E. PASEK, Individually, and as Power of Attorney for James G. Pasek, Plaintiff-Appellant,
v.
CATHOLIC HEALTH SYSTEM, INC., Mercy Hospital of Buffalo, Defendants-Respondents, et al., Defendants.

86
CA 19-01845

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 11, 2021

BROWN CHIARI LLP, BUFFALO (ANGELO S. GAMBINO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BARGNESI BRITT PLLC, BUFFALO (JASON T. BRITT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.

150 N.Y.S.3d 191

MEMORANDUM AND ORDER

195 A.D.3d 1381

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff, individually, and as power of attorney for her husband, James G. Pasek, commenced this medical malpractice action seeking damages for injuries sustained by Pasek, who was admitted to defendant Mercy Hospital of Buffalo (Mercy Hospital) for mitral valve repair surgery in February 2014. Serious complications occurred during the surgery and, during the post-operative period, Pasek was placed on a ventilator and an extracorporeal membrane oxygenation (ECMO) system, which mechanically circulated his blood outside his body through an artificial lung. A few days after the surgery, Pasek's condition deteriorated and he was emergently transported from the open heart unit to the operating room. During the transport, the ECMO tubing became unintentionally disconnected, and Pasek subsequently suffered, among other things, massive blood loss, hypoxic brain injury due to a lack of oxygen, and occipital lobe damage. Plaintiff appeals from an order that granted the motion of defendants Catholic Health System, Inc. and Mercy Hospital (collectively, Mercy defendants) for summary judgment dismissing plaintiff's vicarious liability claims against them. We affirm.

Plaintiff contends that Supreme Court erred in granting the motion because questions of material fact exist whether Mercy Hospital exercised control over defendants John Bell-Thomson, M.D., George R. Bancroft, M.D., and Support Services of WNY, LLC (Support Services), and whether Mercy Hospital held out those defendants as apparent agents of Mercy Hospital, such that the Mercy defendants may be vicariously liable for their conduct. We reject that contention. "[I]t is well settled that, ‘[i]n general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee’ " (

195 A.D.3d 1382

Lorenzo v. Kahn , 74 A.D.3d 1711, 1712-1713, 903 N.Y.S.2d 222 [4th Dept. 2010] ; see Wulbrecht v. Jehle , 92 A.D.3d 1213, 1214, 938 N.Y.S.2d 707 [4th Dept. 2012] ). A hospital may be liable for the negligence of an independent physician, however, if the hospital "maintained control over the manner and means of the physician's work" ( Torns v. Samaritan Hosp. , 305 A.D.2d 965, 967, 761 N.Y.S.2d 126 [3d Dept. 2003] ; see Nagengast v. Samaritan Hosp. , 211 A.D.2d 878, 878-879, 621 N.Y.S.2d 217 [3d Dept. 1995] ). "The test employed is one of control in respect to the manner in which the work is to be done" ( Mduba v. Benedictine Hosp. , 52 A.D.2d 450, 452, 384 N.Y.S.2d 527 [3d Dept. 1976] ).

"[V]icarious liability for the medical malpractice of an independent, private attending physician may [also] be imposed under a theory of apparent or ostensible

150 N.Y.S.3d 192

agency by estoppel" ( Dragotta v. Southampton Hosp. , 39 A.D.3d 697, 698, 833 N.Y.S.2d 638 [2d Dept. 2007] ; see Diller v. Munzer , 141 A.D.3d 628, 629, 34 N.Y.S.3d 608 [2d Dept. 2016] ; Thurman v. United Health Servs. Hosps., Inc. , 39 A.D.3d 934, 935-936, 833 N.Y.S.2d 702 [3d Dept. 2007], lv denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 [2007] ). "In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal ..., [and] the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal" ( Dragotta , 39 A.D.3d at 698, 833 N.Y.S.2d 638 ; see Hallock v. State of New York , 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ; Searle v. Cayuga Med. Ctr. at Ithaca , 28 A.D.3d 834, 836, 813 N.Y.S.2d 552 [3d Dept. 2006], amended on rearg ., ––– A.D.3d ––––, 817 N.Y.S.2d 922 [3d Dept. 2006] ). "In the context of a medical malpractice action against a hospital, the patient must have reasonably...