Thomas A. Moore and Matthew Gaier ()
It is an established general rule that hospitals are not liable for the malpractice of physicians who are not their employees. It is equally established that there are exceptions to that rule, the two most prominent of which are the ostensible agency theory and agency-in-fact or control theory. The body of law addressing these exceptions is voluminous and has developed some inconsistencies.
One circumstance in which this has occurred is where a patient seeks treatment not from a particular physician, but from the hospital. While it has long been recognized that the hospital is vicariously liable for the physicians it assigns to patients in that situation, some decisions have strictly imposed all of the requirements of ostensible agency. However, this circumstance is not purely one of ostensible agency. Rather, it is a distinct exception that involves aspects of both ostensible agency and agency-in-fact. In essence, the “hospital patient” or “emergency room” exception to the general rule is a hybrid of the two exceptions. This column examines the development of these vicarious liability exceptions.
The earliest decision finding vicarious liability for malpractice by a non-employee was Hannon v. Siegel-Cooper, 167 N.Y. 244 (1901). The plaintiff was injured during treatment rendered by a dentist at the defendants’ department store. The store “represented and advertised itself as carrying on the practice of dentistry in one of its departments.” The store owners appealed from a verdict for the plaintiff. Citing “the general doctrine that a person is estopped from denying his liability for the conduct of one whom he holds out as his agent against persons who contract with him on the faith of the apparent agency,” the court held that “the plaintiff had a right to rely not only on the presumption that the defendant would employ a skillful dentist as its servant, but also on the fact that if that servant, whether skillful or not, was guilty of any malpractice, she had a responsible party to answer therefor in damages.”
A half-century later, in holding that hospitals may be liable under respondeat superior for physicians and nurses they employ, the court observed in Bing v. Thunig, 2 N.Y.2d 656 (1957) that “[t]he conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact,” and that “the person who avails himself of ‘hospital facilities’ expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.”
Perhaps the most frequently cited decision on the issue of a hospital’s vicarious liability for non-employee physicians is the Third Department’s opinion in Mduba v. Benedictine Hosp., 52 A.D.2d 450 (3d Dept. 1976), the name of which has essentially become synonymous with ostensible agency. In actuality, that case, which involved a patient admitted through the emergency room, addressed both ostensible agency and agency-in-fact.
The plaintiff’s decedent was brought to the emergency room and treated by Dr. Bitash, who operated the hospital’s emergency room pursuant to a contract indicating he was an independent contractor. The plaintiff claimed the decedent died as a result of Bitash’s negligence, for which the hospital was liable. The Appellate Division held that the trial court improperly dismissed the complaint against the hospital by looking only at the contract.
Addressing agency-in-fact, the court explained that “[t]he test employed is one of control in respect to the manner in which the work is to be done,” and noted that under the contract “the doctor was required to render emergency care …” and was required to do so in accordance with the hospital’s “rules and regulations,” by which the hospital “controlled … the means or manner of achieving this result.” Based on that, the court found “that Bitash was an employee of the defendant hospital and not an independent contractor,” citing as additional factors that the hospital guaranteed him minimum compensation, provided assistance with billing patients, and set the fees he could charge.
Further, citing Hannon, the court identified a separate basis for the hospital’s liability:
The decedent entered the hospital for hospital treatment. The defendant hospital undertook to treat decedent for a charge and furnished the doctors and staff to render that treatment. Defendant having undertaken to treat decedent …, was under a duty to do so effectively. Patients entering the hospital through the emergency room, could properly assume that the treating doctors and staff of the hospital were acting on behalf of the hospital. Such patients are not bound by secret limitations as are contained in a private contract between the hospital and the doctor. Defendant held itself out to the public offering and rendering hospital services.
Therefore, the court concluded, “the defendant hospital, having held itself out to the public as an institution furnishing doctors, staff and facilities for emergency treatment, was under a duty to perform those services and is liable for the negligent performance of those services by the doctors and staff it hired and furnished to decedent.”
The next important case in the development of this body of law is Hill v. St. Clare’s Hosp., 67 N.Y.2d 72 (1986), which involved a clinic rather than a hospital. The plaintiff alleged that he received negligent treatment at the clinic, and sued both the doctor who treated him there and the owner of the clinic. At trial, the court instructed the jury “that a clinic which furnishes an independent doctor to perform services at that clinic is responsible for the negligence of that doctor.” The owner appealed from a verdict against him, and the Court of Appeals affirmed.
After noting that “vicarious liability for medical malpractice generally turns … on agency or control in fact,” the court, citing Hannon, observed that it has also “recognized as a predicate for malpractice liability apparent or ostensible agency (or, as it is sometimes called, agency by estoppel or by holding out).” Citing Mduba and its progeny, the court noted that this principle “has been applied to hold a hospital or clinic responsible to a patient who sought medical care at the hospital or clinic rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital or clinic … .”
In affirming the clinic owner’s liability, the court concluded that the jury could find that “plaintiff accepted [the treating doctor's] services in reliance not upon [that doctor's] skill or competence but upon the fact that his services, whatever in fact his relationship with the clinic, were offered by the clinic.”
Since Mduba and Hill, the ostensible agency doctrine has undergone further development. While there are differing articulations of the doctrine’s elements, it essentially requires words or conduct by the hospital that give rise to the appearance that the physician was employed by, or acting on behalf of, the hospital, and that the patient reasonably believed that to be the case when being treated by the physician. See Pratt v. Haber, 105 A.D.3d 429 (1st Dept. 2013); Dragotta v. Southhampton Hospital, 39 A.D.3d 697 (2d Dept. 2007); King v. Mitchell, 31 A.D.3d 958 (3d Dept. 2006). The circumstances in which ostensible agency applies go beyond those in which patients seek care directly from a hospital. Where a person is admitted to the hospital as the patient of a private attending, the hospital may be liable under ostensible agency for negligence by other physicians—such as radiologists, anesthesiologists, or consulting physicians—who become involved in the patient’s care, if there is evidence of the requisite words or conduct by the hospital and reasonable belief or reliance by the patient. See, e.g., Sampson v. Contillo, 55 A.D.3d 588 (2d Dept. 2008) (radiologist); Dragotta, supra (anesthesiologists); Malcolm v. Mount Vernon Hosp., 309 A.D.2d 704 (1st Dept. 2003) (consulting cardiologist). But we will save that for another day.
The circumstance with which we are presently concerned is where the patient seeks care directly from the hospital and is not the patient of a private physician. Such patients have been referred to as “service patients.” In Calvaruso v. Our Lady of Peace, 36 A.D.2d 755 (2d Dept. 1971), where the plaintiff was taken to the defendant hospital and admitted “as a ‘service patient,’” the Second Department, years before Mduba, observed that the hospital was “derivatively responsible” for the acts of the doctor under respondeat superior, “since he was not ‘an independently retained healer.’”
As explained in Rodrigo v. Brookdale Hosp., 194 A.D.2d 774 (2d Dept. 1993), “[a] service patient is a patient of the Hospital and its employee doctors; a private patient is considered a patient of the attending physician who is affiliated with the Hospital.” The plaintiff’s decedent in Rodrigo had been a service patient from 1979 until 1983, and was thereafter a private patient. The court noted that the “Hospital’s control of the course of treatment to be rendered to the decedent ended no later than July 20, 1983, the last time that the decedent was a service patient … .”
While the vast majority of service or hospital patients enter the hospital through the emergency room, that status may come about in various other ways. For instance, in Mezzone v. Goetz, 145 A.D.3d 573 (1st Dept. 2016), summary judgment was denied to the hospital based on evidence that “plaintiff was referred to the podiatry clinic generally, and not to any specific doctor … .” In Henderson v. Marx, 251 A.D.2d 988 (4th Dept. 1998), the hospital was not entitled to dismissal where the plaintiff alleged that “when the gall bladder surgery was performed, she had sought treatment from the hospital rather than any particular physician.” In Sosnoff v. Jackman, 45 A.D.3d 568 (2d Dept. 2007), the court found issues of fact regarding the hospital’s liability for the physicians where the plaintiff entered a research study for the early detection of ovarian cancer at the hospital, and she came to be treated by the physicians as part of the program.
Many decisions addressing hospital liability in this circumstance reference ostensible agency, including the elements of holding-out by the hospital and reasonable belief or reliance by the patient. See, e.g., Friedland v. Vassar Brothers Med. Ctr., 119 A.D.3d 1183 (2d Dept. 2014); Muslim v. Horizon Med. Group, 118 A.D.3d 681 (2d Dept. 2014); Monostori v. Murphy, 34 A.D.3d 882 (3d Dept. 2006); McDonald v. Ambassador Const., 273 A.D.2d 108 (1st Dept. 2000). However, many other decisions recognize a patient’s admission through the emergency room as a separate exception, without reference to the elements of ostensible agency. The rule stated is: an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing. See, e.g., Smolian v. Port Auth of NY and NJ., 128 A.D.3d 796 (2d Dept. 2015); Anderson v. Montefiore Med. Ctr., 41 A.D.3d 105 (1st Dept. 2007); Shafran v. St. Vincent’s Hosp. & Med. Ctr., 264 A.D.2d 553 (1st Dept. 1999); Ryan v. New York City Health & Hosps., 220 A.D.2d 734 (2d Dept. 1995); Delprete v. Victory Mem. Hosp., 191 A.D.2d 673 (2d Dept. 1993).
There are good reasons why this circumstance should not require satisfaction of all of the elements of ostensible agency. When a patient is wheeled into the emergency room on a stretcher, holding out becomes irrelevant, as does the patient’s belief or reliance. A patient in that situation does not have any real choice about whether to be treated by the hospital.
Conceptually, while many emergency room cases refer to ostensible agency, entry through the emergency room also involves aspects of agency-in-fact. As referenced in Rodrigo, above, the hospital is in control of the course of the treatment rendered to its own patients, while private attendings make the decisions regarding the care and treatment rendered to their patients. The hospital’s control in this context includes making the determinations as to who will treat the patient.
Thus, in Litwak v. Our Lady of Victory Hosp. of Lackawanna, 238 A.D.2d 881 (4th Dept. 1997), after citing the emergency room exception, the court explained, “[t]he issue turns on control and apparent agency; where the hospital determines how and by whom the patient will be treated and brings in an independent physician who commits malpractice, the hospital may be held vicariously liable.” In Salvatore v. Winthrop Univ. Med. Ctr., 36 A.D.3d 887 (2d Dept. 2007), after citing the exception, the court observed that “the plaintiff was brought to the emergency room after he was struck by a car and that the hospital directed Dr. Sonstein to examine him and render treatment.” In Johnson v. Jamaica Hosp. Med. Ctr., 21 A.D.3d 881 (2d Dept. 2005), after citing the rule, the court noted that the plaintiff “did not request treatment by any particular physician and that his case was assigned to Rosenthal on an emergency basis.”
Some decisions have found hospitals vicariously liable as a matter of law where the patient entered through the emergency room. In Schiavone v. Victory Mem. Hosp., 292 A.D.2d 365 (2d Dept. 2002), after noting that “the decedent was transported to the hospital emergency room by ambulance” and that she “sought emergency treatment from the hospital, not from any specific physician,” the court held, “[t]hus, the hospital is vicariously liable for the alleged malpractice of the appellant even though he was an independent contractor with the hospital at the time of the occurrence.”
Similarly, in Tart v. New York Bronx Pediatric Medicine, 116 A.D.3d 515 (1st Dept. 2014), after noting that the plaintiff mother “had been receiving pre-natal care at another facility, was delivered to the hospital by ambulance and entered through the emergency room, seeking care from the hospital,” and that in the neonatal intensive care unit (NICU) the plaintiff was treated by a doctor “assigned to the NICU by [the pediatric group that staffed it] for that particular shift,” the court concluded that “[t]his evidence establishes vicarious liability” by both the hospital and the group regardless of the doctor’s employment status.
A patient who enters the hospital through the emergency room is receiving care from the hospital. The physician assigned by the hospital to provide that care is providing it on behalf of the hospital. The emergency room exception is a hybrid between ostensible agency and agency-in-fact—the physician is actually acting as an agent of the hospital.
That is why it is unnecessary to require strict compliance with the elements of ostensible agency in emergency room cases, and to do so may lead to incongruous results. For example, in Polgano v. Christakos, 104 A.D.3d 501 (1st Dept. 2013), where the plaintiff was brought to the emergency room via ambulance, the court affirmed dismissal of the hospital, stating that “[s]ince it is conceded that plaintiff arrived at defendant hospital in an unconscious state, liability on a theory of ostensible agency finds no record support.” That is directly contrary to the commonly cited decision in Citron v. Northern Dutchess Hosp., 198 A.D.2d 618 (3d Dept. 1993), where the plaintiff’s decedent “lost consciousness on the way to the hospital and did not have any vital signs when she was admitted … .” Noting that “decedent entered the hospital through the emergency room, defendant’s employees called a number of physicians to attend decedent, decedent had no prior physician-patient relationship with any of the physicians in defendant’s emergency room other than [her private obstetrician], and neither decedent nor plaintiff requested or explicitly consented to treatment by any particular physician in the emergency room,” the court affirmed the holding that the hospital was vicariously liable for the emergency room physicians as a matter of law.
The circumstances of Citron involved neither holding out by the hospital, nor belief or reliance by the patient. That is because those elements should not be necessary to establish vicarious liability in an emergency room situation. The hospital should be held vicariously liable in that circumstance because the patient was seeking care from the hospital and the hospital provided that care through the personnel it assigned to do so.
This does not mean that there is always vicarious liability where the patient enters through the emergency room. There are exceptions to the exception. In Spiegel v. Beth Israel Med. Ctr.-Kings Hwy Div., 149 A.D.3d 1127 (2d Dept. 2017), the emergency room exception was held not to apply where the physician for whom vicarious liability was sought was referred to the patient by his private physician. In Christopherson v. Queens-Long Is. Med. Group, 17 A.D.3d 393 (2d Dept. 2005), the exception did not apply where the treating physician was the obstetrician on-call from her private medical group. In Ventura v. Beth Israel Med. Ctr., 297 A.D.2d 801 (2d Dept. 2002), entry through the emergency room was insufficient to hold the hospital liable for a cardiologist that the plaintiff selected based on the recommendation of her sister-in-law.
In short, a patient’s admission through the emergency room involves a separate exception to the general rule that a hospital is not vicariously liable for malpractice by a non-employee physician. That circumstance involves aspects of both ostensible agency and agency-in-fact, and there should be no need to satisfy all of the formal requirements of the former. It is enough to establish that treatment was sought from the hospital, and not from a particular doctor.