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A lawsuit filed on behalf of a baby who suffered disabling injuries at birth may go forward against the union clinic at which the mother’s gynecologist worked, regardless of the doctor’s status as an independent contractor, the 1st Department, Appellate Division, has ruled. “[T]he theory of ostensible agency is not strictly limited to employer-employee relationships. [T]he relevant inquiry is whether the tort (here, the alleged malpractice) ‘consists of a violation of duty which springs from the contract’ between the principal and agent,” the unanimous panel held in Welch v. Scheinfeld, 5831, quoting Hill v. St. Clare’s Hosp., 67 NY2d 72. “Thus, [the] issue of whether [the physician] was an employee or an independent contractor of the union clinic is not decisive as to the union’s vicarious liability for the doctor’s acts,” the appellate panel concluded. Sonia Welch visited her gynecologist, Dr. Andrew H. Scheinfeld, five times at the medical clinic run by her husband’s union, the United Wire, Metal & Machine Health & Welfare Fund. As Welch gave birth on Aug. 12, 1999, her baby’s shoulder became impacted against her pelvis, a condition known as “shoulder dystocia.” When Ms. Welch’s daughter Nicole was born, she suffered from a bruised face, a brachial-plexus injury and Erb’s Palsy, an injury which has left her arm hanging limply even after several operations over the last six years. Nicole, Welch and her husband, Kenneth, filed a suit against Dr. Scheinfeld, the medical clinic and the hospital at which Welch gave birth, Beth Israel Medical Center. The couple claimed among other things that Scheinfeld failed to recognize active labor, failed to diagnose feto-pelvic disproportion and failed to deliver by cesarean section, and that the clinic and hospital were vicariously liable. Supreme Court Justice Stanley L. Sklar granted Beth Israel’s cross-motion for summary judgment. Sklar also dismissed a half-dozen negligence claims against Scheinfeld and the union clinic. He held, however, that the Welches could pursue their few remaining claims against the clinic under a theory of ostensible agency. The Welches appealed and the union and Scheinfeld cross-appealed. Last week, the 1st Department upheld the applicability of the ostensible agency theory and reinstated the dismissed negligence claims. “The doctrine of ostensible agency has been the law of this state for over 100 years and it allows an employer to be held liable for its employees’ acts under certain circumstances,” the panel held in its unsigned decision. “[W]here, as here, a patient seeks medical care from a clinic rather than an individual doctor, [the doctrine] provides a right of action against the clinic based upon its agency relationship with the physician alleged to have committed malpractice.” The panel concluded that if a jury determined that the clinic held itself out as a health care provider and that Scheinfeld was its agent, the clinic “would be estopped from disclaiming liability for the alleged acts of malpractice.” Justices Angela M. Mazzarelli, Betty Weinberg Ellerin, Luis A. Gonzalez and James M. Catterson made up the appellate panel. Matthew Gaier of Kramer, Dillof, Livingston & Moore represents the Welches. Bhalinder L. Rikhye of Peltz & Walker represents the union. Ellen August of Goetz Fitzpatrick represents Scheinfeld.

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