Colicci v Feldman
Annotate this CaseDecided on May 6, 2005
Supreme Court, Oneida County
Irma Colicci and ANTHONY COLICCI, Plaintiffs,
against
Marcus Feldman, M.D.; FAXTON-ST. LUKE'S HEALTHCARE; and SAMIR DESAI, M.D., Defendant
01-02159
CHERUNDOLO, BOTTAR & LEONE, P.C., (John Cherundolo, Esq., of Counsel) for the Plaintiff.
ASWAD & INGRAHAM (Tom Saitta, Esq., of Counsel) for the Defendants.
COHEN & COHEN LLP (Daniel Cohen, Esq., of Counsel) personally for the Defendant Feldman, M.D.
Robert F. Julian, J.
I. FACTS
The Plaintiffs allege that the Defendants Dr. Feldman and Faxton-St. Luke's Healthcare (Faxton) negligently provided radiation therapy to the Plaintiff. The details of those allegedly negligent acts are not relevant to this motion except that in April 1999 the care in question was prescribed and rendered by Dr. Feldman and effectuated by Dr. Feldman and Faxton employees.
A. THE RELATIONSHIP BETWEEN DEFENDANTS
It is undisputed that on the date of the alleged malpractice, Dr. Feldman was the Director of Radiation Oncology at Faxton, a member of the Faxton medical staff and an employee/contractor of Yonkers Radiation Medical Practice. P.C. (Yonkers). Because the [*2]relationships between the Defendants are complicated, we will first review the recent history.
Dr. Feldman, a board certified radiation oncologist, was hired by Faxton as Director of Radiation Oncology, serving in that position from 1987 to the time of the negligence herein. On or about 1987, Faxton founded the Regional Cancer Center owning both the facility and the equipment. Prior to 1998, Dr. Feldman founded and was employed by Radiation Oncology of Central New York, P.C. (Radiation) which operated a radiation oncology medical practice at the Faxton facility for many years. Under the arrangement with Radiation, Faxton owned the facility and equipment. During the time Feldman operated Radiation at Faxton pursuant to an unwritten agreement, Faxton billed for the Hospital's services and Radiation billed separately for its medical services. Faxton supplied all employees on the radiation oncology service except the physicians. Dr. Feldman testified that under the Radiation agreement, he was "responsible to the Medical Director of the Hospital on the medical end and on the administrative end, I would be responsible to the CEO of the Hospital or his designated person." This relationship changed once Yonkers obtained its contract with Faxton, according to Dr. Feldman in that since he "was an employee of Yonkers, I had to report to someone within the Yonker's organization." He however continued to report to the CEO of the Hospital as Medical Director.
Commencing in 1987, Dr. Feldman had an agreement with Faxton that was entitled "Employment Agreement", which provided that he was to be paid $25,000 a year for ten hours a week of work as head of the Radiation Therapy Department. One of Dr. Feldman's duties pursuant to this Agreement was the responsibility to "build the service by, among other things, marketing to private physicians in the service area who will be referring patients to the Department". The word "Department" was defined in the contract as the Department of Radiation Therapy and his employment obligations included the following language: "The Hospital hereby retains the Physician as its Director of the Department of Radiation Therapy to provide services hereinafter referred to...".
The employment agreement also provided that Dr. Feldman will engage in a private practice using the Hospital's facilities and that Dr. Feldman "shall not open up, nor participate in, any other practice except as mutually agreed to by the parties to this Agreement." Keith Fenstemacher, the Hospital Administrator, does not deny that the 1987 employment agreement was in effect at the time of the malpractice, but rather argues that the employment contract sets forth administrative duties not medical duties. Fenstemacher maintains that the Agreement's provisions were "to promote administrative and procedural standards, such as providing a uniform practice as to the contents of a history and physical report, a plan of care, or the licensing requirements for granting privileges"(sic). None of the Affidavits served by Faxton attempt to amplify upon the responsibility of the Medical Director to "build the service...by marketing to physicians." Deborah Altdoerfer, the Vice President for Communications and Development for Faxton testified that the Hospital had a systematic effort to market the "cancer center" to physicians and the public including a promotional brochure listing Drs. Crawford, Feldman and Sharma as comprising "our physician team that work with your primary care physician, surgeon, and medical oncologist".
In a letter regarding the Plaintiff's care dated April 9, 1999, on Faxton letterhead, Feldman is listed as follows:
Faxton Hospital Radiation Oncology
315 738-6260
Marcus S. Feldman, M.D.
Faima Sharma, M.D.
In June of 1998, Faxton entered into a contract with Yonkers to provide physician radiation oncology services. The arrangement between Yonkers and Faxton differed from the arrangement between Radiation and Faxton in that Faxton did all of the billing, scheduling and rate setting and paid Yonkers a lump sum of $1.2 million per year. Moreover, Yonkers employed a Chief Technologist and "had people that they brought in from time-to-time to [*3]oversee aspects of the practice, and, they employed physicians within the practice." There was a written agreement between Faxton and Yonkers. At the time of the alleged malpractice, Drs. Sharma and Crawford were also employed by Yonkers to provide physician related radiation oncology services to Faxton.
The Agreement between Faxton and Yonkers includes the following:
1)Yonkers is to provide all radiation oncology services to Faxton;
2) Faxton will pay Yonkers $1,141,000 for these services.
3) Faxton establishes the fees charged for Yonkers work.
4) Faxton bills and controls the charges for Yonkers work.
5) Faxton collects and pockets the fees for Yonkers work.
6) Faxton controls the booking of patients.
7) Faxton owns the facility including all of the equipment and services the same.
8) Yonkers and its physicians including Feldman, pursuant to a restrictive covenant clause, are prevented from practicing medicine within one-hundred miles of Utica, New York for two years.
B. THE RELATIONSHIP BETWEEN
THE PLAINTIFF AND THE DEFENDANTS
Mrs. Colicci was unable to give a deposition. Mr. Colicci testified that Dr. Desai referred the Plaintiff (his wife) to Dr. Feldman, but it is unclear if he was quoting Dr. Desai's precise words or if that was Mr. Colicci's summary of what occurred after Dr. Desai called the Center and talked to Dr. Feldman. Dr. Desai's earlier note simply mentions that he obtained a radiation oncology consult. All treatment which is relevant to the alleged malpractice in this case was performed at the Faxton Hospital Regional Cancer Center at 1676 Sunset Avenue, Utica, and the Four County Division at 2201 Genesee St., Utica. New York, both facilities owned by Faxton.
The moving Defendant also relies on the fact that the co-Defendant Dr. Desai specifically stated that he was referring to Dr. Feldman. There are two statements by Dr. Desai, one that he was going to ask Dr. Feldman to see her and the other that "I told her that we will ask Dr. Feldman to see her."
II. ANALYSIS
There are questions of fact regarding Dr. Feldman's status, both with regard to the Hospital and the patient. Unlike any other reported cases such as Mduba v. Benedictine Hospital, 52 AD2d 450, and its progeny, Dr. Feldman was functioning under an employment agreement which compensated him for a number of duties including attracting patient referrals to the cancer service by other physicians. Unlike any of the other Mduba related cases, Dr. Feldman's other employer, Yonkers, did not bill patients seen, were paid a flat rate for their services and all physicians employed by them were subject to a covenant not to compete. Other indices of control such as setting prices and scheduling were also within the exclusive province of Faxton. Only Yonkers physicians had privileges on the Faxton radiation oncology service and Yonkers and Feldman were contractually bound to not have privileges elsewhere, in contrast to Nagengast v. Samaritan Hospital, 211 AD2d 878 (3rd Dept., 1995) wherein the court reasoned that the Defendant physician was independent and not controlled by the Hospital because he had privileges at other hospitals, thus, the hospital was not vicariously liable.
Indeed the arrangement in this case may be similar to the arrangement in Hill v. St. Clair's Hospital, 67 NY2d 72 where the Court ruled that a physician owner of a clinic who did not render care was not entitled to dismissal and that the trial court properly sent to the jury the issue of whether or not the services accepted by the Plaintiff in that case were accepted in reliance [*4]upon the fact that they were offered by the clinic and the individual doctor.
Significant in the case at bar is the undisputed fact that it was a specific duty of Dr. Feldman pursuant to the employment agreement to attract patients to Faxton's Radiation Oncology Service from referring physicians. Thus at trial, when the facts are more fully developed, it is possible that the Court may conclude as a matter of law that the employer/employee relationship between Faxton and Feldman creates liability on the part of Faxton.
Other factual issues exist regarding Dr. Feldman's status. The Court of Appeals in Kavanaugh v. Nussbaum, 71 NY2d 535, examined the various forms of physician related vicarious liability. The Court notes at page 546: The person in a position to exercise some general authority over the wrongdoer must do so or face the consequences (Prosser and Keaton, Torts §69 at 500 [5th Ed 1984]. A classic example is liability of an employer for the acts of its employees within the course of employment, evidencing the public policy foundation of vicarious liability
In the case at bar the Hospital maintains it is not the employer because it hired the independent contractor Yonkers who retained the physicians rendering care. The test is not the declarations in the contract, it is the existence "of some recognized traditional legal relationship such as a partnership, master and servant, or agency..." Kavanaugh v. Nussbaum at 547 quoting Graddy v. New York Medical College, 19 AD2d 426. The Court in Kavanaugh points out the general principals that:
1)Hospitals are liable for the negligence of their employees; and
2) That vicarious liability can apply to hospitals and physicians;
3)"Between physicians in the treatment of patients, the imposition of liability on one for the negligence of the other has been largely limited to situation of joint action in diagnosis or treatment or some control of the course of treatment by one of the other". ID at 547 quoting Graddy v. New York Medical College at 429.
Following the Court of Appeals advice in Kavanaugh that the issue of agency or control necessarily focuses on the relationship between the Defendants and not their relationship with the Plaintiffs, there is a question of fact as to whether Faxton has exercised sufficient control to be an employer or the master in this case. Faxton hired Yonkers paying a flat rate to provide medical services at their Radiation Oncology Center. Faxton scheduled for Yonkers, set rates, billed and required a covenant not to compete from the physicians. These are the indices of an employer or master exerting some degree of control. Faxton counters that they do not control the specific care rendered. Because Faxton retained only one group of physicians to provide services under the terms of the contract discussed above unlike the traditional hospital privileges setting, a question of fact is created given that Faxton limited patients choice to Yonkers employed physicians. In this circumstance, a jury could conclude Faxton is the operator of all aspects of the clinic including the medical care.
The Defendant's motion is denied except for the allegations that the Hospital failed to: accept proper and skilled physicians, test Dr. Feldman's knowledge and skill, and adopt protocols for determining qualifications for physicians. These allegations are dismissed.
The following fact questions will likely be resolved at trial either as jury questions or by the Court as a matter of law based upon the proof:
1) Was Dr. Feldman an employee of the Hospital and acting within the scope of his employment agreement when treating the Plaintiff, thereby making the Hospital responsible for his negligence? PJI 2:235.
2) Was Dr. Feldman a shared employee of the Hospital and Yonkers when treating [*5]the plaintiff?
3) Was Dr. Feldman an agent by estoppel of the Hospital pursuant to Mduba v. Benedictine Hospital, 52 AD2d 450?
4) Was Dr. Feldman a physician with privileges providing treatment wherein he was an independent physician and consequently the Hospital is not liable for any negligence he may commit?
5) Was Faxton the owner of the Regional Radiation Oncology Center? Did Faxton furnish medical care to the Plaintiff Irma Colicci through its agents Yonkers and Dr. Feldman?
6) Did Faxton hold out Dr. Feldman, even though an independent contractor, as Faxton's agent or employee thereby estopping Faxton from asserting the independent contractor status because the Plaintiff relied on that representation? See PJI 2:225 and Hill v. St. Clare's Hospital, 67 NY2d 72 (1986).
Plaintiff shall submit an Order on notice. A telephone conference to schedule a trial date will be held on MAY 27, 2005 AT 9:00 A.M.
Dated:
Utica, New York.
________________________________
Robert F. Julian, J.S.C.
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