Goodman v Herzog

[*1] Goodman v Herzog 2009 NY Slip Op 52254(U) [25 Misc 3d 1222(A)] Decided on October 15, 2009 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 15, 2009
Supreme Court, Richmond County

Jordana Goodman and CORY GOODMAN, DCM PART 5, Plaintiff(s),

against

David M. Herzog, M.D., MICHAEL A. SCHIRRIPA, M.D., WOMEN'S HEALTH CARE SPECIALISTS, JOSE ENCANTO, M.D., CAROL MAE RUSSELL, M.D., and MARIE KIMBALL, R.N., Defendant(s).



104280/2007

Judith N. McMahon, J.

This action was commenced by the plaintiff, on or about October 1, 2007, alleging medical malpractice against the defendants. Specifically, the plaintiff contends that the defendants negligently exposed the plaintiff to a staff infection during her stay at St. Vincent's hospital from May 30 through June 1, 2005. The defendants Carol Mae Russell, M.D., and Marie Kimball, R.N. [hereinafter "Russell and Kimball"], by their personal attorney, are now moving, inter alia, seeking an order of this court declaring that Saint Vincents Medical Center [hereinafter "SVMC"] must provide full indemnification to defendants Russell and Kimball, as they were employees at the time of the alleged incident.

It is undisputed that St. Vincents Medical Center [hereinafter "St. Vincents"], a non-party to this action, filed for Chapter 11 Bankruptcy in July 2005. On January 25, 2006, the United States Bankruptcy Court issued an order directing all potential creditors whose claims arose prior to July 5, 2005, to file a proof of claim with the bankruptcy court on or before March 30, 2006. The order indicated that all claims accruing before the Bar Date would be released, and expressly included all of St. Vincent's employees, who were entitled to indemnification, in the reorganization plan. The bankruptcy notice was published as directed, and on July 27, 2007, the bankruptcy court confirmed the chapter 11 reorganization plan and discharged all pre-petition claims against the debtors.

Thereafter, this claim was instituted against the defendants wherein SVMC appointed counsel to represent defendants Russell and Kimball. At this juncture, the personal attorney of defendant Russell and Kimball is requesting the court declare that SVMC is directed to fully indemnify defendants Dr. Russell and Nurse Kimball. It is the defendants Russell and Kimball's contention that they were employees of St. Vincent's who were acting within the scope of their employment at the time of the alleged malpractice and, as a result, they contend that they were "covered persons"[FN1], as defined under the reorganization plan and entitled to full indemnification [*2]by St. Vincents.

Generally, "[i]n order for a hospital to be liable for the malpractice of physicians, it must be shown that the physicians performed their services under the hospital's control or supervision" (Klippel v. Rubinstein, 300 AD2d 448, 449 [2d Dept., 2002]; Hill v. St. Clare's Hosp., 67 NY2d 72, 79 [1986][finding that "a hospital or other medical facility is liable for the negligence or malpractice of its employees"]; Deltoro v. Arya, 44 AD3d 896, 896 [2d Dept., 2007]).

The defendants Russell and Kimball have established that they were employees at the time of the alleged malpractice, acting within the scope of their employment and are entitled to full indemnification under the theory of vicarious liability from their employer St. Vincents (id.). This theory is long recognized under New York State law and the defendant SVMC's legal sophistry will not be tolerated. Namely, SVMC attempted to argue in United States Bankruptcy Court "to bar pre-petition medical malpractice claims asserted against any "covered person"' in an effort to dismiss the claims against Dr. Russell and Nurse Kimball by alleging that plaintiff Jordana Goodman failed to timely file a proof of claim in the Bankruptcy Court. SVMC theorized that because Russell and Kimball were "covered persons" (i.e., "any physician or employee of SVMC to the extent that such physician or employee has a right of indemnification against or from SVMC with respect to claims of alleged medical malpractice") that pre-petition medical malpractice claims also require a timely filed proof of claim. SVMC contended that claims against their employees and/or "covered persons" was in essence a claim against the hospital itself.

SVMC further argued that to permit such pre-petition claims would drain the MedMal Trusts which were designed to pay for timely filed claims against the hospital. Not only did SVMC vehemently set forth this argument in Bankruptcy Court but after losing, appealed in a continued effort to bar the claims against its employees. The Bankruptcy Court and the Appellate Court both rejected SVMC's argument. The irony with which SVMC argued so vehemently to protect Dr. Russell and Nurse Kimball, as "covered persons" (which blatantly states that they are persons entitled to indemnification from SVMC) in the Bankruptcy Court and yet refused to provide full indemnification in this underlying action, is abhorrent.

Here, the defendant SVMC contends that directing indemnification is premature and inappropriate where, as here, there is no clear intent to indemnify. This contention is in error and in blatant contrary to SVMC's argument in Bankruptcy Court. The idea that the employees of SVMC are not entitled to indemnification from their employer is against well settled precedent (Klippel v. Rubinstein, 300 AD2d 448, 449 [2d Dept., 2002]; Hill v. St. Clare's Hosp., 67 NY2d 72, 79 [1986][finding that "a hospital or other medical facility is liable for the negligence or malpractice of its employees"]; Deltoro v. Arya, 44 AD3d 896, 896 [2d Dept., 2007]). As a result, this Court grants the motion by defendant Dr. Russell and Nurse Kimball requesting full indemnification from St. Vincents Hospital, whether provided by current counsel or substitution of new attorney if a conflict prevents such representation. In addition, this Court awards [*3]defendants Dr. Russell and Nurse Kimball all fees/costs/disbursements that were incurred in making this motion and pursuing their entitlement to indemnification.

Accordingly, it is

ORDERED that defendants Carol Mae Russell, M.D., and Marie Kimball, R.N.'s motion requesting an order directing St. Vincents' Hospital to provide full indemnification for Carol Mae Russell, M.D., and Marie Kimball, R.N, is hereby granted, and it is further

ORDERED that defendant St. Vincents Hospital provide full indemnification to defendants Carol Mae Russell, M.D., and Marie Kimball, R.N. for the remainder of this action and pay all costs/fees/disbursements for defendants Russell and Kimball incurred in pursuing their indemnification rights, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: October 15, 2009E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:A "covered person" is defined, in the reorganization plan as, "any physician or employee of SVCMC to the extent that such physician or employee has a right of indemnification against or from SVCMC with respect to claims of alleged medical malpractice".