Soltis v. State

• Decision Date: 04 April 1991
• Citation: 172 A.D.2d 919,568 N.Y.S.2d 470
• Parties: Bruce SOLTIS, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 470

568 N.Y.S.2d 470

172 A.D.2d 919

Bruce SOLTIS, Respondent, v. STATE of New York, Appellant.

Supreme Court, Appellate Division Third Department.

April 4, 1991.

Robert Abrams, Atty. Gen. (Michael S. Buskus, of counsel), Albany, for appellant.

Michael Rikon, P.C., New York City, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

LEVINE, Justice.

Appeal from that part of an order of the Court of Claims (Lyons, J.), entered May 23, 1990, which denied the State's motion for summary judgment dismissing the claim.

On March 12, 1986, claimant, an inmate at Clinton Correctional Facility in Clinton County, was examined by a physician's assistant at the facility's infirmary following complaints by claimant of lumps on both sides of his neck. At that time, the physician's assistant scheduled claimant for an examination by Nicholas Scors, a semi-retired general surgeon who performed consultations with inmates at the facility. Two weeks later, claimant was seen by Scors, who recommended that he undergo a lymph biopsy excision, which was done by Scors in April 1986.

Following the surgery, claimant continued to experience pain and, in November 1988 ¹, commenced the instant action against the State, claiming that Scors committed malpractice by severing a spinal accessory nerve during the biopsy excision. Subsequently, the State moved for summary judgment dismissing the complaint based upon its defense that Scors was an independent contractor rather than an employee and, thus, it could not be held vicariously liable for Scors' alleged negligence. Claimant opposed the State's motion and cross-moved for summary judgment. The Court of Claims denied both motions and only the State has appealed.

On this appeal, the State contends that the Court of Claims erred in concluding that, although Scors was an independent contractor, the State could nonetheless be held liable for Scors' negligence, if any, based upon a theory of agency by estoppel. We disagree. The principle of ostensible agency or agency by estoppel has been applied in this State to hold a hospital or other medical facility responsible for the malpractice of a physician providing services there, despite the physician's status as an independent contractor, where medical care was sought by a patient from the hospital or clinic rather than from a particular physician (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79-81, 499 N.Y.S.2d 904, 490 N.E.2d 823; Casucci v. Kenmore Mercy Hosp., 144 A.D.2d 910, 534 N.Y.S.2d 606; Mduba v. Benedictine Hosp., 52 A.D.2d 450, 453, 384 N.Y.S.2d 527). The applicability of the doctrine depends upon whether the plaintiff could have reasonably believed, based upon all of the surrounding circumstances, that the treating physician was provided by the defendant hospital or clinic or was otherwise acting on the defendant's behalf (see, Casucci v. Kenmore Mercy Hosp., supra; Augeri v. Massoff, 134 A.D.2d 308, 309, 520 N.Y.S.2d 787).

Here, the record indicates that claimant was initially examined at the facility's infirmary by a physician's assistant employed by the State, who arranged for claimant's later consultation with Scors, which also occurred at the facility. Prior to surgery, claimant signed a Department of Correctional Services consent form authorizing performance of the...