The Second Department’s recent decision in Ciceron v. Gulmatico provides an interesting look at the scope of a hospital’s exposure for vicarious liability through its emergency department.
In Ciceron, the plaintiff was treated in the hospital’s emergency department. During that treatment, plaintiff received a referral for outpatient follow-up with a physician who was not employed by the hospital. Plaintiff saw the physician on an outpatient basis and then underwent a surgery with the physician at the same hospital where the initial emergency department treatment and referral occurred. Plaintiff alleged the surgery was negligently performed and that the hospital was vicariously liable for the physician’s care.
In support of the vicarious liability claim, plaintiff alleged that the hospital’s referral to the outpatient physician was sufficient to create a reasonable belief within the plaintiff that the physician was affiliated with the hospital and give rise to vicarious liability. The Second Department rejected that claim and held that a “mere referral” was insufficient to impose vicarious liability upon the hospital. In doing so, it prevented a problematic expansion of hospital vicarious liability that could have easily extended the doctrine beyond care actually provided at the hospital.