                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     517650
________________________________

ANN PAULA FRIEDLAND, as
   Administrator of the Estate
   of JACK FRIEDLAND, Deceased,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

VASSAR BROTHERS MEDICAL
   CENTER,
                    Appellant.
________________________________


Calendar Date:   June 3, 2014

Before:   Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                             __________


      Phelan Phelan & Danek, LLP, Albany (Stanley J. Tartaglia
Jr. of counsel), for appellant.

      Goldstein & Goldstein, LLP, Poughkeepsie (Paul J. Goldstein
of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered April 23, 2013 in Ulster County, which denied defendant's
motion for summary judgment dismissing the complaint.

      This medical malpractice action arises out of the death of
plaintiff's husband, Jack Friedland (hereinafter decedent), at
defendant's hospital. On the morning of May 6, 2007, decedent
woke plaintiff shivering uncontrollably and complaining of pain
in his lower back. Plaintiff called for an ambulance and
requested that decedent be taken to defendant's emergency room.
Upon arrival, decedent came under the care of emergency room
                              -2-                517650

medical director Craig van Roekens. Believing decedent to be
experiencing a heart attack, van Roekens immediately activated
defendant's cardiac catheterization team. Van Roekens then
contacted cardiac interventionalist Zubair Jafar and cardiologist
Gary Nathanson. Nathanson examined decedent briefly in the
catheterization lab as Jafar and his team prepared for the
procedure. Jafar successfully cleared an occlusion in decedent's
right coronary artery, but decedent continued to exhibit signs of
distress. After conferring with Jafar, Nathanson contacted
intensivist Michael Dempsey, who admitted decedent to the
intensive care unit (hereinafter ICU). Dempsey, whose
differential diagnosis included sepsis and a possible perforated
bowel, ordered various tests, including a CT scan of decedent's
abdomen. The CT scan, once completed, revealed a likely
perforation in decedent's intestinal tract. More than 15 hours
after decedent first arrived at the hospital, surgeon Rubin
Delgado began an emergency laparotomy – a surgical exploration of
decedent's abdominal cavity – in the hopes of locating and
repairing the perforation. The surgery lasted four hours.
Decedent succumbed to severe septic shock several hours later.

      Plaintiff subsequently commenced this action alleging,
among other things, that van Roekens, Nathanson, Dempsey and
others failed to timely order, perform and read the abdominal CT
scan, which prevented the prompt diagnosis of decedent's
abdominal puncture as the source of his sepsis and ultimately led
to his death. Following joinder of issue and discovery,
defendant moved for summary judgment dismissing the complaint.
Supreme Court denied the motion, and this appeal ensued.

      Under settled law, a hospital ordinarily may not be held
liable for the negligent acts of treating physicians who are not
hospital employees (see Hill v St. Clare's Hosp., 67 NY2d 72, 79
[1986]; Brink v Muller, 86 AD3d 894, 895-896 [2011]; Thurman v
United Health Servs. Hosps., Inc., 39 AD3d 934, 935 [2007], lv
denied 9 NY3d 807 [2007]). Vicarious liability for malpractice
on the part of nonemployee physicians may be imposed, however, on
a theory of ostensible or apparent agency (see Hill v St. Clare's
Hosp., 67 NY2d at 79; St. Andrews v Scalia, 51 AD3d 1260, 1261-
1262 [2008]; Monostori v Murphy, 34 AD3d 882, 883 [2006]).
"'Essential to the creation of apparent authority are words or
                              -3-                517650

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" (Searle v Cayuga
Med. Ctr. at Ithaca, 28 AD3d 834, 836 [2006], quoting Hallock v
State of New York, 64 NY2d 224, 231 [1984]; see St. Andrews v
Scalia, 51 AD3d at 1261-1262; Thurman v United Health Servs.
Hosps., Inc., 39 AD3d at 935-936; King v Mitchell, 31 AD3d 958,
960 [2006]). 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"
(Citron v Northern Dutchess Hosp., 198 AD2d 618, 620 [1993], lv
denied 83 NY2d 753 [1994]; accord St. Andrews v Scalia, 51 AD3d
at 1262; see Brink v Muller, 86 AD3d at 896).

      Here, none of decedent's treating physicians were hospital
employees. Thus, as the proponent of the motion for summary
judgment, defendant bore the initial burden of establishing that
decedent sought care from a specific physician rather than from
defendant generally (see St. Andrews v Scalia, 51 AD3d at 1262;
Payant v Imobersteg, 256 AD2d 702, 703-704 [1998]). In support,
defendant argues primarily that decedent's care was assumed and
directed by Nathanson, an employee of decedent's primary care
group, and thus that decedent could not reasonably have believed
his treating physicians were acting on defendant's behalf.
Defendant's own submissions, however, belie this claim. Decedent
arrived at defendant's emergency room shortly after 8:30 a.m.
After taking initial steps to stabilize decedent, van Roekens
activated the cardiac catheterization team, contacted Jafar and
Nathanson and transferred decedent to the catheterization lab for
further treatment. Nathanson testified that he had encountered
decedent for the first time in the catheterization lab
immediately prior to the catheterization procedure. While
Nathanson testified that he had told decedent he was employed by
decedent's primary care group, the record as a whole establishes
that Nathanson's role in decedent's course of treatment was
limited. It was van Roekens, not Nathanson, who activated the
catheterization team and contacted cardiac interventionalist
Jafar. Defendant's records indicate that Jafar, not Nathanson,
was decedent's admitting physician, and that it was Jafar who
stented decedent's occluded coronary artery. Although Nathanson,
                              -4-                517650

"hoping to be helpful," attempted to obtain decedent's consent to
the catheterization, the record indicates that decedent told
Nathanson to "go ask [plaintiff]."

      Plaintiff ultimately signed a consent form – on defendant's
letterhead (see Monostori v Murphy, 34 AD3d at 883; Torns v
Samaritan Hosp., 305 AD2d 965, 967 [2003]) – authorizing Jafar,
not Nathanson, to perform the catheterization. Nathanson further
testified that he had conferred with Jafar after the
catheterization procedure, and that he and Jafar agreed, in light
of decedent's deteriorating condition, to transfer him to the
ICU. Notably, Nathanson testified that he had no further contact
with decedent after delivering him into Dempsey's care, and that
it was Dempsey who admitted decedent to the ICU. Nothing in the
record indicates that Nathanson ordered or performed tests during
decedent's hospitalization or otherwise assumed responsibility
for his care (compare Thurman v United Health Servs. Hosps.,
Inc., 39 AD3d at 936-937). In light of the foregoing, defendant
failed to make out a prima facie case that decedent "could not
have reasonably believed that he was receiving medical care from
the hospital in general rather than from a particular physician"
(Thurman v United Health Servs. Hosps., Inc., 39 AD3d at 937; see
St. Andrews v Scalia, 51 AD3d at 1262-1263; Monostori v Murphy,
34 AD3d at 883; cf. Hickey v Arnot-Ogden Med. Ctr., 79 AD3d 1400,
1401-1402 [2010]; compare Schultz v Shreedhar, 66 AD3d 666, 666-
667 [2009]).

      Defendant argues alternatively that, irrespective of any
potential vicarious liability on its part, decedent's attending
physicians committed no malpractice. Again, 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
(see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d
1283, 1285-1286 [2014]; Olinsky-Paul v Jaffe, 105 AD3d 1181, 1182
[2013]; LaFountain v Champlain Val. Physicians Hosp. Med. Ctr.,
97 AD3d 1060, 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193
[2012]). In support of its motion, defendant submitted, among
other things, the affirmation of board-certified pulmonologist
and critical care physician Scott Beegle. Noting that physical
examination and other test results – including an abdominal X ray
                              -5-                517650

– initially suggested that decedent was not suffering from an
intestinal perforation, Beegle opined that Dempsey's decision to
order a non-STAT CT scan comported with the accepted standard of
care. Beegle further noted that decedent'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 plaintiff "to establish, through competent expert
medical opinion evidence, that there exists a triable issue of
fact as to whether there was a deviation from the accepted
standard of care and whether there exists a causal nexus between
that deviation and [decedent's] injuries" (Helfer v Chapin, 96
AD3d 1270, 1272 [2012]; see Longtemps v Olivia, 110 AD3d 1316,
1318 [2013]; Derusha v Sellig, 92 AD3d at 1194).

       To this end, plaintiff submitted a responsive affirmation
from board-certified surgeon Thomas Hamilton Gouge, who opined
that decedent's treating physicians departed from accepted
standards of care both by failing to timely diagnose decedent's
intestinal perforation and by failing to timely operate to find
and repair the perforation. Regarding the necessity of the CT
scan itself, Gouge 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
Dempsey in his deposition testimony. Gouge further opined that,
in light of decedent'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 Gouge,
decedent's physical condition should not have delayed performance
of the scan. Gouge also affirmed that decedent 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 decedent's untimely demise.
Viewing the evidence in a light most favorable to plaintiff, we
conclude that Gouge's affirmation was sufficient to raise triable
issues of fact with regard to the timeliness of the CT scan and
ensuing surgical intervention (see Cole v Champlain Val.
Physicians' Hosp. Med. Ctr., 116 AD3d at 1287-1288; Longtemps v
Olivia, 110 AD3d at 1318; Derusha v Sellig, 92 AD3d at 1194).
Accordingly, this branch of defendant's summary judgment motion
                              -6-                  517650

was also properly denied.

      To the extent that defendant argues that plaintiff's
allegations of negligence exceed those contained in her bill of
particulars as amended, defendant waived this argument by failing
to make it before Supreme Court (see CPLR 5501 [a] [3]; Congleton
v United Health Servs. Hosps., 67 AD3d 1148, 1149-1150 [2009];
Goodspeed v Adirondack Med. Ctr., 43 AD3d 597, 598 [2007]). In
any event, plaintiff's second amended bill of particulars
provided defendant adequate notice of her theory of negligence
(see CPLR 3043 [a] [3]; Citron v Northern Dutchess Hosp., 198
AD2d at 619; see also Hudson v Lansingburgh Cent. School Dist.,
27 AD3d 1027, 1029 [2006]; compare Suits v Wyckoff Hgts. Med.
Ctr., 84 AD3d 487, 489 [2011]).

     Garry, Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
