A hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of their employment. However, a hospital is not vicariously liable for the negligence or malpractice of a private attending physician who is not an employee. There are exceptions to this general rule where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing, or a nonemployee physician otherwise acts as an agent of the hospital or the hospital exercised control over the physician. To establish its entitlement to summary judgment dismissing a claim of vicarious liability, the hospital must address and rebut any such allegations in the complaint and the bill of particulars. In the absence of such a showing, the hospital must establish either that the physician was not negligent, or that the physician's negligence was not a proximate cause of the plaintiff's injuries.
Mitchell v. Goncalves, NY Slip Op 00268 (2d Dep't January 15, 2020)
Here is the decision.
