Lack of Medical Provider Consultations Not Ordinary Negligence

A woman presented at a hospital's renal dialysis unit with complaints of constipation, lower left quadrant abdominal pain, and difficulty related to her home dialysis treatment of her end-stage diabetic renal disease. Following laboratory tests and various imaging studies, the woman was admitted to the emergency department with a diagnosis of bacterial peritonitis related to her status as a peritoneal dialysis patient. The following day, she was evaluated as stable but her condition quickly worsened, she became abruptly hypotensive and unresponsive, and died shortly thereafter. The immediate cause of death was cardiac arrest. Postmortem examination revealed that at the time of her death the woman suffered from a ruptured acute appendicitis, pelvic abscesses, and diffuse mild acute peritonitis.


The woman’s husband sued the hospital; the physician primarily responsible for treating decedent's end-stage diabetic renal disease; the attending emergency medicine physician in the hospital’s ER; the attending radiologist who reviewed the woman’s pelvic/abdominal CT; and another attending radiologist who reviewed x-rays of the woman's kidneys, ureter, and bladder. The complaint alleged medical malpractice, wrongful death, and negligence. Specifically, the complaint alleged that the doctors failed to timely and adequately diagnose and treat the woman's ruptured acute appendicitis, and that they misdiagnosed her condition as peritonitis.


The Monroe County Supreme Court granted the motions of the hospital and doctors for summary judgment and dismissed the complaint.


The Appellate Division of the New York Supreme Court, Fourth Department, affirmed. The court held that the estate failed to raise a triable issue of fact and the trial court did not err in dismissing the cause of action for negligence.


The estate failed to raise a triable issue of fact as the experts’ affidavits were insufficient. The affidavit of the estate's expert in internal medicine and cardiology was insufficient to defeat the hospital and doctor’s motions. The affidavit was vague, conclusory, speculative, and unsupported by the medical evidence in the record. The affidavit of the estate's radiology expert was likewise conclusory, speculative, and without a basis in the record. Therefore, there was no viable cause of action against any individual physician to serve as a predicate for imposing vicarious liability on the hospital under the theory of respondeat superior or ostensible agency. The trial court properly granted the physicians' motions seeking summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as they were asserted against each of them and, in turn, the hospital.


The trial court did not err in dismissing the cause of action for ordinary negligence. The action actually was one for medical malpractice. Generally, the office practices of hospitals, physician medical groups, and their staff members may be embraced by the ordinary negligence standard. However, the challenged conduct at issue, including the alleged lack of consultation between the medical providers about the woman's chronic underlying conditions, bore a substantial relationship to the rendition of medical treatment by a licensed physician. The court concluded that the trial court properly determined that the cause of action alleged medical malpractice, not ordinary negligence.


The Appellate Division of the New York Supreme Court, Fourth Department, affirmed the trial court’s grant of summary judgment in favor of the hospital and doctors.


See: Bagley v. Rochester General Hosp., 2015 WL 25497, 2015 N.Y. Slip Op. 00044 (N.Y.A.D. 4 Dept., January 2, 2015) (not designated for publication).


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