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Hospital reneges on promise to assume vicarious liability.

CAN YOU RELY ON YOUR HOSPITAL'S REPRESENTATION THAT IT WILL ACCEPT VICARIOUS LIABILITY FOR A MEDICAL MALPRACTICE JUDGMENT AGAINST YOU? The answer may depend upon the hospital involved. In this New York case, a hospital which had made a commitment that it would assume vicarious liability for medical malpractice committed by attending physicians in a particular case, reneged on its agreement. Both the hospital and two physician defendants were all represented by only one attorney throughout the trial of the case. When the hospital refused to honor its commitment to accept vicarious liability after a judgment for an amount in excess of $1,250,000 was entered, the New York courts were confronted with the issue of whether or not the hospital should be allowed to renege on its commitment.

TECLA THOMAS BROUGHT SUIT AGAINST BROOKDALE HOSPITAL MEDICAL CENTER, DR. KEITH MEYER AND TWO OTHER PHYSICIANS FOR THE WRONGFUL DEATH OF HER HUSBAND. Her husband died as a result of a pulmonary embolism which he suffered during a cardiac catherization performed at Brookdale Hospital Medical Center. At trial, the plaintiff's expert medical witness testified that the insertion of a catheter into the patient's right femoral vein dislodged a blood clot, causing the pulmonary embolism. A jury found that defendant Dr. Keith Meyer had departed from the accepted standards of medical practice by failing to test the patient's leg for blood clots prior to the procedure. The jury attributed 100 percent of fault for the patient's death to Dr. Meyer and found that the two other physicians employed by the hospital had not been negligent. The verdict sheet did not ask the jury to separately apportion the degree of fault between the hospital and Dr. Meyer because the attorneys for the parties agreed that the hospital would be vicariously liable pursuant to the doctrine of Respondeat Superior in the event any of the physicians were found to have been guilty of medical malpractice which caused the patient's death. However, after a judgment was entered against both Dr. Meyer and the hospital, the hospital moved to vacate the judgment against it upon the grounds that Dr. Meyer had treated the patient in his capacity as a private attending physician. The court granted the hospital's motion. The judgment was amended to dismiss the complaint against Brookdale Hospital. Dr. Meyer appealed. The plaintiff cross appealed maintaining that the judgment in excess of $1,250,000 failed to award damages for conscious pain and suffering.

THE SUPREME COURT OF NEW YORK, APPELLATE DIVISION, HELD THAT THE LOWER COURT ERRED AND REVERSED THE JUDGMENT OF THE LOWER COURT. The judgment was modified by deleting that portion of the judgment which dismissed the hospital from the case, and reinstating the plaintiffs complaint against the hospital. This resulted in a judgment against both the defendant hospital and Dr. Meyer. The court agreed with Dr. Meyer's contention that the jury verdict (which was predicated upon the jury's finding that the patient's life expectancy was 30 years) was against the weight of the evidence in view of the evidence and medical proof of the patient's serious health problems. Accordingly, the court applied a more realistic 20-year life expectancy and reapportioned damages consistent with that more realistic life expectancy. In view of all the circumstances, the court strongly agreed with the plaintiffs contention that the lower court should not have granted the hospital's motion to dismiss. The court focused on the fact that all defendants were represented by a single attorney.

A HOSPITAL'S COMMITMENT TO ACCEPT VICARIOUS LIABILITY IS ONLY AS GOOD AS THE WORD OF THOSE WHO HAVE GIVEN IT. This case is a classic illustration of the fact that such a commitment should be reduced to writing. Curiously, at the trial stage, all of the defendants in this case were represented by one attorney. Obviously, there was, in fact, a conflict of interest which surfaced when the chips were down and the jury returned a verdict in excess of $1,250,000. Physicians should consult with their own attorneys as well as their own professional liability insurance carriers and not rely either upon legal counsel for hospitals or legal counsel for hospital insurance carriers. Physicians will be well-served to ensure that they are, in fact, represented by attorneys for their own professional liability insurance carriers as well their own personal attorneys. Physicians should also keep in mind that in most cases their own professional liability insurance carriers have liability only up to the amount of coverage in their policies. Thomas v. Brookdale Hospital Medical Center, 731 N.Y.S. 2d 67-NY (2001)
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Publication:Medical Law's Regan Report
Article Type:Brief Article
Geographic Code:1USA
Date:Oct 1, 2001
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