NY appellate court reinstates medical malpractice case

The Fourth Department has reinstated a medical malpractice lawsuit against Crouse Health Hospital Inc., three doctors, and Neonatal Associates of Central New York.

The plaintiff is Sarah Rice. The individual defendants are Dr. Thomas Curran, Dr. Melissa Nelson, Dr. Ellen Bifano.

The lawsuit filed in state Supreme Court in Syracuse in January 2021 accuses the defendants of errors during delivery that resulted in brain damage, visual and hearing impairments, and cognitive deficits in the child.

In July 2024, state Supreme Court Justice Joseph E. Lamendola granted the motion of defendant Crouse Health, for summary judgment and dismissed the complaint against them.

That ruling was appealed and, in a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed Lamendola’s decision and reinstated the complaint.

In general, a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not an employee, the court noted.

But a hospital may be liable for the negligence of an independent physician “under a theory of apparent or ostensible agency by estoppel.”

“In the context of a medical malpractice action against a hospital, the patient must have reasonably believed that the physicians treating (them) were provided by the hospital or acted on the hospital’s behalf,” the court wrote.

“All the surrounding circumstances are relevant in determining whether a plaintiff could have reasonably believed that a treating physician was provided by the hospital or otherwise acting on the hospital’s behalf,” the panel wrote.

“Here, Crouse met its burden on the motion, with respect to plaintiff’s claim of vicarious liability for the acts of the Neonatal defendants based on a theory of apparent agency, by establishing that the Neonatal defendants were independent contractors and not employees of Crouse,” according to the decision.

“We agree with plaintiff, however, that she raised a triable issue of fact in opposition to the motion,” the court wrote.

Rice submitted the affidavit of defendant Curran, who stated that he wore Crouse-issued scrubs that were the same scrubs worn by hospital physicians and that his badge identified him as a physician on the medical staff of Crouse Health.

“He further stated in the affidavit that it was ‘more likely than not’ that he was the male doctor with whom plaintiff spoke after the infant’s birth and that plaintiff could reasonably have assumed he was an employee of the hospital,” the court wrote.

“We conclude that plaintiff raised a triable issue of fact whether Crouse may be vicariously liable under a theory of apparent or ostensible agency,” the court ruled.

“We further conclude that, under the circumstances of this case, plaintiff also raised a triable issue of fact whether she could have properly assumed that the treating doctors . . . of the hospital’s neonatal unit were acting on behalf of the hospital,” the court wrote.

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