Second Department Denies Summary Judgment On Principle Of Ostensible Or Apparent Agency

In Alvarado v. Beth Israel Medical Center, the plaintiff underwent a procedure to remove gallstones at Beth Israel Medical Center on September 14, 1999.  Dr. Lo, an employee of hospital, performed the procedure.  On September 17, 1999, the plaintiff underwent a second procedure at the hospital which was performed by Dr. Seth Cohen, an independent contractor who had been dismissed from the action on statute of limitations grounds. A third procedure was performed by Dr. Lo on the same day, following the procedure performed by Dr. Cohen.

The plaintiff and her husband commenced this action against, among others, Dr. Lo and the hospital, alleging, among other things, that the defendants had committed malpractice by perforating the plaintiff's intestine during the September 14, 1999, procedure, and failing to timely diagnose and treat this perforation. In November 2008 the defendants moved for summary judgment dismissing the complaint, presenting evidence that the perforation of the plaintiff's intestine did not occur during the September 14, 1999, procedure, but occurred during the September 17, 1999, procedure performed by Dr. Cohen. The plaintiffs cross-moved for leave to amend their bill of particulars to add new theories of malpractice, including an allegation that the defendants committed malpractice by failing to remove the entire gallbladder on September 14, 1999, which created an increased risk of a bile duct leak, creating the necessity for the first September 17, 1999, surgery, and an allegation that Dr. Lo performed an unnecessary and/or improper subsequent surgery on September 17, 1999.  

The trial court denied the hospital's motion and granted the plaintiffs' cross-motion.  The Second Department affirmed.  The Court held that leave to amend should be freely given and the plaintiffs presented a question of fact as to whether Dr. Lo caused plaintiff's injuries.  The Court also held that even though Dr. Cohen was an independent contractor for whom hospital's generally are not liable, the plaintiff had raised a question of fact as to whether the hospital could be vicariously liable under a theory of ostensible or apparent agency.    

As the Second Department explained in Sampson v. Contillo, "'[i]n order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill.' Thus, '[t]here are two elements to such a claim of apparent or ostensible agency.'  'To establish the 'holding out' element, the misleading words or conduct must be attributable to the principal.' 'To establish the 'reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal' 'In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf.' 'In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all 'attendant circumstances . . . to determine whether the patient could properly have believed that the physician was provided by the hospital' " (internal citations omitted).