Gardner v. Brookdale Hospital Medical Center
Opinion of the Court
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J), dated April 3, 2009, which granted the defendant’s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
“As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee” (Padula v Bucalo, 266 AD2d 524, 524 [1999]; see Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]; Orgovan v Bloom, 7 AD3d 770 [2004]; Johanessen v Singh, 259 AD2d 670, 671 [1999]). “However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” (Orgovan v Bloom, 7 AD3d 770, 771 [2004]; see Woodard v LaGuardia Hosp., 282 AD2d 529, 530 [2001]; cf. Abraham v Dulit, 255 AD2d 345 [1998]; Litwak v Our Lady of Victory Hosp. of Lackawanna, 238 AD2d 881 [1997]).
The defendant, Brookdale Hospital Medical Center (hereinafter the Hospital), established its prima facie entitlement to judgment as a matter of law with respect to the issue of vicarious liability on the ground of apparent or ostensible agency (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; cf. Filemyr v
Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Fisher, J.P., Balkin, Roman and Sgroi, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.