Perez v City of New York
Annotate this CaseDecided on October 9, 2013
Supreme Court, Kings County
Jose Angel Perez, as Administrator of the Goods, Chattels and Credits which were of the Estate of MARISELA GENAO a/k/a MARISELA ALTAGRACIA GENAO, Plaintiff,
against
City of New York and NEW YORK METHODIST HOSPITAL, Defendants.
17847/2010
Marsha L. Steinhardt, J.
The following papers numbered 1 to 7 read herein:Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and Affidavits
(Affirmations) Annexed1
Plaintiffs' Opposing Affidavits (Affirmations)2
Defendants' Reply Affidavits (Affirmations)3
Supplemental submission - REMSCO Protocol4
Defendant City of New York moves for an Order pursuant to CPLR §3212 granting summary judgment in its favor. Plaintiff opposes the motion.
NOW, upon the foregoing and oral argument on September 19, 2013 and due deliberation had thereon, the motion of Defendant City of New York for summary judgment is Granted.
This is an action sounding in negligence and medical malpractice for the wrongful death of Marisela Genao on December 27, 2008. Plaintiff claims, inter alia, that the City (through its employees) was negligent in delaying to transport the patient to the hospital. She also claims that pursuant to principles of Apparent or Ostensible Agency, the City is vicariously liable for the [*2]acts of an advanced life support (ALS) crew employed by non-party New York Presbyterian Hospital.
It is uncontroverted that a call was made to 911 when decedent suffered an asthma attack at her home on November 25, 2008. A New York City basic life support (BLS) ambulance arrived at the scene and began treating plaintiff with basic life support methods. The patient had already been placed in the BLS ambulance when an advanced life support (ALS) ambulance from New York Presbyterian Hospital arrived moments later, at 8:37 pm. With equipment brought over from the ALS ambulance, the ALS (paramedic) crew began treating the patient in the BLS ambulance and took over the treatment of the patient. Prior to transport at 8:48 pm, the patient deteriorated and the paramedics proceeded to intubate the patient. At 8:49 pm, as the paramedics continued to work on the patient, the BLS technicians drove both ambulances to New York Methodist Hospital which was located 2 minutes away. Shortly after arrival at the emergency room, at 8:58 pm, the patient coded and chest compressions commenced. At 9:18 pm, the emergency room physician discovered that the endotracheal tube had become dislodged from the trachea and re-intubated the patient. The patient was initially stabilized but subsequently died on December 27, 2008.
The action was commenced against the City and New York Methodist Hospital with the filing of a Verified Complaint on or about July 20, 2010. The Complaint interposes three causes of action: (1) wrongful death against the City of New York; (2) wrongful death against New York Methodist Hospital; and (3) conscious pain and suffering against New York Methodist Hospital. Plaintiff claims that the City was negligent in delaying the transport of the patient to the hospital. In an amended Bill of Particulars, plaintiff also claims that the City is vicariously liable for the acts of the ALS paramedics for the allegedly negligent intubation of the patient.
The nonparty New York Presbyterian paramedics, Daniel Machuca and Rosemarie Mandala, were deposed by plaintiff's counsel pursuant to subpoena. The paramedics testified that they were employed by New York Presbyterian Hospital on the date of the incident. Mr. Machuca testified that he intubated the patient with an endotracheal tube with the assistance of Ms. Mandala while in the back of the City ambulance.
The City submits that it is entitled to summary judgment because it did not perform the intubation on the patient that at some point became dislodged. Indeed, it asserts that it is uncontroverted that the ALS paramedics, not the City EMTs, performed the intubation. The City also claims that it is not vicariously liable for the acts of the ALS paramedics as they were employed by New York Presbyterian and not the City. The documentary evidence submitted with the papers supports the City's position, thus, the Court finds that the City has made a prima facie showing of entitlement to summary judgment on this issue.
Plaintiff attempts to raise an issue of fact claiming that the City should be held vicariously liable for the acts of the ALS paramedics arguing that the City controlled the conduct of the New York Presbyterian paramedics. Plaintiff bases this claim on the testimony of paramedic Mandala who testified that her ambulance was dispatched by the City and that paramedics are required to stay in areas designated by the City. She testified that paramedics have to follow FDNY guidelines as to patient care, patient transport, requesting supervisors, and contracting a doctor if needed for additional treatment.
However, plaintiff's argument fails as a municipal defendant cannot be held vicariously [*3]liable for the alleged negligence of paramedics it does not employ. No vicarious liability exists for actions of a private hospital's employees and ambulance paramedics dispatched by defendant municipal emergency ambulance service. Hilsen v. City of New York, 254 AD2d 10 (1st Dept. 1998), lv. denied 92 NY2d 817 (1998). The City defendants can not be held vicariously liable for the actions of the ALS paramedics where the ambulance and its personnel were not hired, compensated or trained by the City defendants. See, Brown v. Transcare New York, Inc., 27 AD3d 350 (1st Dept. 2006). Here, there is no evidence that the paramedics were compensated or trained by the City and thus, the City cannot be held vicariously liable for the ALS crew.
Plaintiff argues that even if the court finds that the City did not sufficiently control the paramedics, the City is nonetheless vicariously liable for the actions of the paramedics as apparent or ostensible agents of the City. He claims that the care rendered by the paramedics was provided in a setting owned, operated and managed by the City suggesting to the patient that she was receiving care from a City employee or agent or in the City's behalf. He argues that the patient received care in "what amounted to a mobile emergency room."
Plaintiff bases this argument on an exception to the well established rule that a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee. Mondello v. New York Blood Ctr.-Greater NY Blood Program, 80 NY2d 219, 228 (1992); Fiorentino v. Wenger, 19 NY2d 407 (1967); Cerny v. Williams, 32 AD3d 881, 882 (2d Dept. 2006); Christopherson v. Queens-Long Island Med. Group, P.C., 17 AD3d 393, 394 (2d Dept.2005); Woodard v. LaGuardia Hosp., 282 AD2d 529); Keitel v. Kurtz, 54 AD3d 387 (2d Dept 2008). The exception to the rule is premised on the principles of apparent or ostensible agency which may be found when a hospital represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent. Hill v. St. Clare's Hosp., 67 NY2d 72 (1986); Dragotta v. Southampton Hosp., 39 AD3d 697, 698 (2d Dept. 2007).
"In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf." Dragotta, supra. at 699; Begley v. City of New York, 2013 WL 5225242 (2d Dept. 2013). In order to create such apparent agency, the plaintiff must "reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill." Dragotta v. Southampton Hosp., supra. At 698; Sampson v. Contillo, supra. at 589; Sullivan v. Sirop, 74 AD3d 1326, 1328 (2d Dept. 2010); Begley v. City of New York, supra. In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all "attendant circumstances ... to determine whether the patient could properly have believed that the physician was provided by the hospital." Augeri v. Massoff, 134 AD2d 308 (2d Dept. 1987); Contu v. Albert, 18 AD3d 692, 693 (2d Dept. 2005); Sampson v Contillo, 55 AD3d 588, 590 (2d Dept. 2008); Loaiza v. Lam, 107 AD3d 951 (2d Dept. 2013).
Plaintiff's opposition based on apparent or ostensible agency also fails to raise an issue of fact to withstand summary judgment. In particular, the conditions under which the theory of apparent authority may be invoked is absent here. A necessary element to finding apparent agency is a reliance on the perceived relationship between the agent and the principle rather [*4]than a reliance on the skill of the paramedics treating the patient. Additionally relevant would be the existence of misleading words or conduct upon which the patient would have relied on which would give an appearance of the City's authority. Here there is evidence of neither. Indeed, the evidence supports the opposite; that is, that the actions of both ambulance personnel indicate that the ALS paramedics were in charge of the situation and possessed the skill, expertise and authority to control the treatment of the patient. Although the City technicians were the first to provide care for the patient, the ALS unit took over all care and treatment while the BLS team deferred to their superior training. It is noted that although the treatment took place in the BLS ambulance, the paramedics testified that they brought their own equipment with them into the BLS bus. Indeed the testimony of the non party ALS paramedics supports the claim that at no time did the BLS team exert control over the treatment rendered to the patient by the ALS paramedics. Furthermore, there is no evidence that the patient accepted the services of the ALS unit, not in reliance of their skill, but based upon the relationship between it and the City. The contrary argument would be more in line with the evidence; that is, that plaintiff's reliance, if any, would be based on the skill of the ALS unit and not on any relationship the paramedics may have had with the City. In sum, the plaintiffs did not offer any evidence of any misleading words or conduct on the City's part which could give rise to a belief that the paramedics were its agent, or evidence that the plaintiff accepted the services of the paramedics in reliance upon her perceived relationship between the City and the paramedics. Accordingly, there is no basis for a vicarious liability claim based upon apparent or ostensible agency.
The City also argues that it bears no liability for any claimed delay in transporting the patient to the hospital as it was following proper protocol. The City submits copies of the protocols administered by the Regional Emergency Medical Services Council of New York City ("REMSCO") whose duty is to coordinate the emergency medical services of New York City. It claims that REMSCO writes the protocol for ALS units and creates General Operating Procedure protocols which coordinate efforts when both ALS and BLS units respond to a call. REMSCO's general operating procedures dictate that paramedics assume medical control at the scene if paramedics and EMTs are present, and that medical control includes, but is not limited to, decisions involving patient care, movement and transportation. The deposition testimony of BLS technician Linda Ubiles, which was confirmed by the testimony of the nonparty paramedics, indicates that the REMSCO protocol was followed. The Court thus finds that the City established a prima facie entitlement to summary judgement on this issue.
Plaintiff opposes summary judgment claiming that the City was negligent in delaying transport of the patient to the hospital. In support of this argument he cites the Statewide Basic Life Support Adult and Pediatric Treatment Protocols which requires a BLS unit to (1) request Advanced Life Support if available; (2) not delay transport to the appropriate hospital and; (3) transport immediately, keeping the patient warm. However, this protocol cited by the plaintiff does not make any reference to coordination of efforts in the presence of an Advanced Life Support unit and is insufficient to overcome the City's prima facie showing of entitlement to summary judgment on this issue as well.
Therefor, the motion of the City of New York for summary judgment is granted in its entirety. The action is dismissed as to the City of New York, the action is hereby severed as against the remaining defendants, and the Clerk of the Court is directed to enter judgment [*5]accordingly.
ENTER,
HON. MARSHA L. STEINHARDT
J.S.C.
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