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Hospital Liability for Nonemployee Physicians’ Failure to Diagnose


A man awoke shivering uncontrollably and complaining of pain in his lower back. His wife called for an ambulance and requested that the man be taken to a hospital's emergency room. Upon arrival, the man came under the care of the emergency room medical director. After taking initial steps to stabilize him, believing he was experiencing a heart attack, the emergency room medical director immediately activated the hospital’s cardiac catheterization team. The emergency room medical director then contacted a cardiac interventionalist and a cardiologist and transferred the man to the catheterization lab for further treatment.

 

The cardiologist examined the man briefly in the catheterization lab as the cardiac interventionalist and his team prepared for the procedure. The cardiac interventionalist successfully cleared an occlusion in his right coronary artery, but he continued to exhibit signs of distress. After conferring with the cardiac interventionalist, the cardiologist contacted an intensivist, who admitted the man to the intensive care unit (ICU). The intensivist, whose differential diagnosis included sepsis and a possible perforated bowel, ordered various tests, including a CT scan of the man's abdomen. The CT scan, once completed, revealed a likely perforation in his intestinal tract. More than 15 hours after the man first arrived at the hospital, a surgeon began an emergency laparotomy—a surgical exploration of the man's abdominal cavity—in the hopes of locating and repairing the perforation. The surgery lasted four hours. The man succumbed to severe septic shock several hours later.

 

The man’s wife sued the hospital. The complaint alleged that the cardiac interventionalist, cardiologist, intensivist, and others failed to timely order, perform and read the abdominal CT scan, which prevented the prompt diagnosis of the man's abdominal puncture as the source of his sepsis and ultimately led to his death. The Ulster County Supreme Court denied the hospital's motion for summary judgment dismissing the complaint.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed. The court held that vicarious liability for malpractice on the part of nonemployee physicians may be imposed on a theory of ostensible or apparent agency, and the wife submitted evidence that was sufficient to raise triable issues of fact with regard to the timeliness of the CT scan and ensuing surgical intervention.

 

Vicarious liability for malpractice on the part of nonemployee physicians may be imposed on a theory of ostensible or apparent agency. Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority’ to act on behalf of the principal. Consequently, a hospital may face vicarious liability for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician. None of this patient’s treating physicians were hospital employees. Thus, as the proponent of the motion for summary judgment, the hospital bore the initial burden of establishing that the man sought care from a specific physician rather than from the hospital generally.

 

The hospital argued that this patient’s care was assumed and directed by the cardiologist, an employee of the man's primary care group, and thus the man could not reasonably have believed his treating physicians were acting on the hospital's behalf. The hospital's own submissions, however, belied this claim. The cardiologist testified that he had encountered the man for the first time in the catheterization lab immediately prior to the catheterization procedure. While the cardiologist testified that he had told the man that he was employed by his primary care group, the record as a whole establishes that the cardiologist's role in the man's course of treatment was limited. It was the emergency room medical director, not the cardiologist, who activated the catheterization team and contacted the cardiac interventionalist. Hospital records indicated that the cardiac interventionalist, not the cardiologist, was the man's admitting physician, and that it was the cardiac interventionalist who stented the man's occluded coronary artery. Although the cardiologist, “hoping to be helpful,” attempted to obtain the man's consent to the catheterization, the man ultimately signed a consent form on the hospital's letterhead—authorizing the cardiac interventionalist, not the cardiologist, to perform the catheterization. The cardiologist further testified that he had conferred with the cardiac interventionalist after the catheterization procedure, and that they agreed, in light of the man's deteriorating condition, to transfer him to the ICU. The court noted that the cardiologist testified that he had no further contact with the man after delivering him into the intensivist's care, and that it was the intensivist who admitted the man to the ICU. Nothing in the record indicates that the cardiologist ordered or performed tests during the man's hospitalization or otherwise assumed responsibility for his care. The court concluded that the hospital failed to make out a prima facie case that the man could not have reasonably believed that he was receiving medical care from the hospital in general rather than from a particular physician.

 

The wife submitted evidence that was sufficient to raise triable issues of fact with regard to the timeliness of the CT scan and ensuing surgical intervention. The defendant bore the initial burden of establishing that decedent's treatment fell within accepted standards of care, or that any departure from such standards was not a proximate cause of decedent's injuries. In support of its motion, the hospital submitted, among other things, the affirmation of a board-certified pulmonologist and critical care physician. Noting that physical examination and other test results—including an abdominal X ray—initially suggested that decedent was not suffering from an intestinal perforation, the pulmonologist opined that the intensivist's decision to order a non-STAT CT scan comported with the accepted standard of care. The pulmonologist further noted that the man's deteriorating physical condition required that he be stabilized before the scan could be performed, and that such stabilization, too, complied with the accepted standard of care.

 

Accordingly, the burden shifted to the wife to establish, through competent expert medical opinion evidence, that there existed a triable issue of fact as to whether there was a deviation from the accepted standard of care and whether there existed a causal nexus between that deviation and the man’s injuries. The wife submitted a responsive affirmation from a board-certified surgeon, who opined that the man's treating physicians departed from accepted standards of care both by failing to timely diagnose his intestinal perforation and by failing to timely operate to find and repair the perforation. Regarding the necessity of the CT scan itself, the surgeon noted that an abdominal x-ray is not a definitive enough test to exclude an intestinal perforation, and that an abdominal CT scan was the most efficacious diagnostic device under the circumstances—a sentiment notably echoed by the intensivist in his deposition testimony. The surgeon further opined that, in light of the man's clinical presentation upon arrival at the ICU, the applicable standard of care required that a CT scan of his abdomen be immediately performed. According to the surgeon, the man's physical condition should not have delayed performance of the scan. The surgeon also affirmed that the man was stable enough to have undergone abdominal surgery much earlier in the day, and that the unnecessary delay in identifying and repairing the intestinal perforation led to the man's untimely demise. Viewing the evidence in a light most favorable to the plaintiff, the court concluded that the surgeon's affirmation was sufficient to raise triable issues of fact with regard to the timeliness of the CT scan and ensuing surgical intervention. Accordingly, the court concluded that the trial court properly denied this part of the hospital's summary judgment motion.

 

The Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court’s denial of the defendant's motion for summary judgment dismissing the complaint.

 

See: Friedland v. Vassar Bros. Medical Center, 2014 WL 3511130, 2014 N.Y. Slip Op. 05388 (N.Y.A.D. 3 Dept., July 17, 2014) (not designated for publication).

 

See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

 

 

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