Crystal Gardner, etc., appellant, v. Brookdale Hospital Medical Center, respondent. (2010)

Argued-April 23, 2010

DECISION & ORDER

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 A.D.2d 524, 524;  see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79;  Orgovan v. Bloom, 7 AD3d 770;  Johanessen v. Singh, 259 A.D.2d 670, 671).  “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;  see Woodard v. LaGuardia Hosp., 282 A.D.2d 529, 530;  cf.   Abraham v. Dulit, 255 A.D.2d 345;  Litwak v Our Lady of Victory Hosp. of Lackawanna, 238 A.D.2d 881).

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 N.Y.2d 320, 325;  cf.   Filemyr v. Lombardo, 11 AD3d 581).   It demonstrated that Marvalette Gardner, the mother of the infant plaintiff, received prenatal care at a HIP Center, was referred to the Hospital on three occasions for prenatal testing by a private physician, and was instructed by her private physician to go to the Hospital for the infant's birth (cf.  Filemyr v. Lombardo, 11 AD3d 581;  Finnin v. St. Barnabas Hosp., 306 A.D.2d 189;  Mduba v. Benedictine Hosp., 52 A.D.2d 450).   Upon her admission to the labor and delivery department, Gardner was treated by Dr. Stanislawa Szechter, an obstetrician on call from the HIP Center with privileges at the Hospital.   The evidence that Gardner did not request a specific doctor when she arrived at the Hospital and had never heard of or met Dr. Szechter before was insufficient to raise a triable issue of fact (see Christopherson v Queens-Long Is. Med. Group, P.C., 17 AD3d 393;  Bevelacqua v. Yonkers Gen. Hosp., 10 AD3d 668;  Orgovan v. Bloom, 7 AD3d at 771;  Padula v. Bucalo, 266 A.D.2d at 525;  Woodard v. LaGuardia Hosp., 282 A.D.2d 529).

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.

ENTER:

James Edward Pelzer

Clerk of the Court