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In New York, when is a Nursing Home or Hospital liable for the malpractice of a doctor who treats one of its patients? -- Mduba and the question of agency.

In New York, some courts have held that "the person who avails himself of hospital facilities has a right to expect satisfactory treatment from any personnel who are furnished by the hospital." Mduba v. Benedictine Hospital 52 A.D.2d 450, 384 N.Y.S.2d 527 (3rd Dept. 1976). In Mduba,the court held that a doctor who is under contract with the hospital to render emergency care is liable for the doctor's acts under the theory of agency. The court reasoned that "patients entering the hospital through the emergency room could properly assume that the treating doctor and staff of the hospital were acting on behalf of the hospital." The rationale is that of Agency and that one may sue a Principal "in the reasonable belief that the services are being rendered by the employer or his servants."

Similarly, in Duncan v. St. Mary's Hospital of Niagra Falls, 176 Misc. 2d 201, 672 N.Y.S.2d 657 (Sup. Erie Co. 1998), the court held that the hospital was liable for an anesthesiologist because the "procedure may appear to be one of the many services that he will receive from the hospital during his admission." The test depends on "the degree of control retained by the hospital" or alternatively, demonstrating "from the surrounding circumstances that it was otherwise reasonable for the patient to believe that the servicing physician was provided by the hospital or acting on the hospital's behalf."

Of course, even if Mduba applies and the treating physician's independent care or medical decisions are found to be negligent, the nursing home or hospital would still be entitled to either indemnification or contribution for the doctor's actions.

Whether Mduba applies is a question of agency. In Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904 (1986), the Court of Appeals concluded: "that a physician is a shareholder, officer or employee of a professional service corporation does not make him vicariously liable for the malpractice of another doctor who is an officer, director and employee of the corporation." (citing Connell v. Hayden, 83 A.D.2d 30, 49-59, 443 N.Y.S.2d 383; Business Corporation Law ยง 1505[a]).

An illustration of when Mduba will not apply is Hylton v. Flushing Hosp. & Med. Ctr., 218 A.D.2d 604, 605, 630 N.Y.S.2d 748, 750 (1st Dept. 1995), where the Court explained:

In the matter before us, the corporate defendant is not a professional service corporation and its president is not a physician. Nor is there evidence to suggest that bills were submitted to plaintiff on behalf of Bravo or that it has any financial interest in defendant physician's practice other than receiving monthly rent payments. Significantly, the appointment cards used by defendant physician bear only her name. Plaintiff's subjective impression that Bravo operates a clinic on the premises is hardly probative, especially as she refers, in her testimony, to any other facility where she was seen by physicians as a "clinic" (cf., Santiago v. Archer, 136 A.D.2d 690, 691, 524 N.Y.S.2d 106). It is settled that liability in malpractice generally rests upon actual agency and control over the tortfeasor and not on mere association.

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