Luna v. Spadafora (2015 NY Slip Op 03134)
Our partner, Michael J. Boranian, who heads the medical malpractice department at Montfort, Healy, McGuire & Salley LLP, was recently successful in the defense of an action brought against a major area hospital. Mr. Boranian represented the hospital both at trial in the Suffolk County Supreme Court and in the Appellate Division, Second Department, which last week affirmed the trial court’s dismissal of the complaint.
The case concerned a cancer patient who asserted that the hospital should be held vicariously liable for the alleged negligence of her private treating physician. The plaintiff alleged that, due to a negligent delay in diagnosing her condition, the cancer spread, her chance of cure was diminished and she was forced to undergo more extensive surgery than would have been the case had the diagnosis been timely made. The trial court ruled that the hospital could not be held vicariously liable for the actions of the private treating physician because his treatment of private patients, such as the plaintiff, was not within the scope of his employment.
The plaintiff attempted to convince the trial court that various contractual provisions and tangential contacts the physician had with the hospital indicated that the hospital had control over the physician’s actions when it came to treating patients. Despite these provisions and contacts, the trial court determined, upon essentially undisputed evidence, that the clear language of the contract established that treatment of patients was not within the scope of the employment agreement and, therefore, the hospital could not be held vicariously liable.
On appeal, the Appellate Division, Second Department affirmed, holding that the complaint against the hospital was properly dismissed.
Click here to read the court’s full decision.