Published on:

A man commenced a wrongful death action against a hospital and three physicians.


A man commenced a wrongful death action against a hospital and three physicians. The incident happened when the wife of the man was presented to the hospital to give birth to their daughter. The mother died the next day after the delivery from an infection allegedly not previously diagnosed or treated. In the instant action, the man sought damages in the sum of $500,000 for his wife’s wrongful death and $50,000 for conscious pain and suffering.

The complaint alleges that the physicians undertook and did provide hospital services to the mother with negligence and inappropriate nature constituting acts of medical malpractice and that each of the three doctors was acting within the scope of his employment by the hospital. Thereafter the three doctors settled the wrongful death action against them for $115,000. The settlement was approved by order of the Supreme Court. Two days later, a provision in discontinuing the action as to the doctors was executed by them and the attorneys for the complainant.

Afterwards, the NYC hospital filed a motion for an order requiring the doctors to appear for an examination before trial and it was granted. The order of special term directed the doctors to appear for examination before trial at the conclusion of examinations of the hospital and the complainant man. However, despite the order, the three doctors moved for an order to modify the caption of the man’s action so as to delete their names as party opponents. The doctors contended to the stipulation of discontinuance that they were no longer opponents.

By order, the special term denied the motion asserting that the hospital had a cross claim against the doctors which was still viable. Based on records, the court’s decision was consistent with the hospital’s position that it was seeking remuneration against the three doctors, and that their status as parties under the cross claim was unaffected by the settlement between the complainant and the doctors under the provisions of the general obligations law. The relevant provision with this proceeding includes the effect of release of or covenant not to sue tortfeasors, the release of tortfeasor and the waiver of contribution.

The doctors moved for another proceeding concerning their motion to modify the lawsuit caption of the man. In support thereof, they asserted that since they settled their case with the man, they were not required to participate as opponents in the man’s action against the remaining tortfeasor. The hospital, in opposition to the motion of the doctors asserted that while the settlement eliminated its right to contribution from the doctors, it did not affect the hospital’s cause of action for common law remuneration from the doctors. The special term explained that since the man alleges in his complaint that the three physicians were employees of the hospital and were acting within the scope of their employment at the time they allegedly committed their acts of malpractice, liability of the hospital may well be vicarious in nature and based upon the theory of Respondeat superior at which the hospital is liable on the action of its employees.

In support to the motion of the doctors in modification the lawsuit caption and for another proceeding, the three physicians argued that the prior order of the justice which granted the hospital’s motion to examine them as opponents was void for lack of the court’s jurisdiction. They claimed that as the man settled and discontinued his action against them, they were no longer parties. The thrust of the doctors’ argument on appeal is that despite the allegation in the man’s complaint that they were employees of the hospital, the concession by the hospital that they were independent contractors renders it impossible for the hospital to be held vicariously liable for their acts and, therefore, there can be no common law remuneration.

Twenty-three days after the entry of the order denying the proceeding, the doctors served a notice to admit upon the hospital. The hospital admitted that all three were attending physicians and independent contractors, and not its employees.

The hospital further contends that it is clear that the man’s complaints of negligence and medical malpractice are, in reality, directed to the physicians and not to the hospital. Under the circumstances the hospital would be at most passively negligent and would have a common-law implied right of remuneration over and against the physicians. Specifically, the hospital contends in its brief that the complainant may be able to prove at trial that other employees of the hospital, like nurses and attendants, followed the negligent direction of the physicians. Under those circumstances, the hospital argues, it would be vicariously liable for the passive negligence of its nurses and attendants and it would have a right to remuneration since the hospital stands in the shoes of its employees against the doctors.

As correctly indicated by the hospital, no discovery of evidentiary facts has taken place. Therefore, since the action is still in the pleading stage, it is necessary to ascertain solely from the pleadings whether at the time a claim of indemnity against the physicians may exist in favor of the hospital. According to the man’s complaint all of the opponents undertook to and did provide hospital services to the wife with negligence and inappropriate nature and each of the three physicians was acting within the scope of his employment by the hospital.

With respect to the hospital’s admission obtained by the three physicians, the law is settled that the purpose of the notice to admit procedure is not to obtain information in lieu of other disclosure devices, but only to eliminate from the issues matters which will not really be in argument at the trial. Moreover, while the hospital did respond to the notice to admit, the information sought therein, whether the three Nassau physicians were independent contractors, was in fact a request for an admission to an ultimate or conclusory fact which can only be determined after a full and complete trial.

The appellate division submits that the elimination of the three physicians as opponents at the stage of the action is fraught with possible procedural complications. A finding, after a trial, that the hospital is vicariously liable for their negligence, without their being the opponents would not be binding upon them. Such an eventuality would defeat some of the essential purposes for the enactment of law and rules pertaining to interpleader, third-party practice, and the interposing of cross claims and counterclaims, namely to avoid multiplicity of proceedings, to nurture a speedy, less expensive administration of justice and to determine the ultimate rights of all parties in one trial.

In addition, deferring the consideration of any application dealing with the true relationship between the hospital and the three physicians at the time of the occurrence, at least until after pretrial depositions of all the litigants as parties to the action have been conducted, is in accordance with sound procedural practice and eminently fair to all.

Consequently, the appellate division finds that the appeal from an order of the Supreme Court was dismissed and no appeal lies from an order denying a motion for another proceeding. Furthermore, the order of the same court is affirmed. The hospital is awarded one bill of 50 costs and disbursements to cover both appeals.

Pregnancy and delivery is not simple. It is true that it is a process, but a lot of complication might appear or eventually develop to any mother and even to their newborns. If your wife experienced malpractice from their medical providers, you can have the legal guidance of the Kings County Medical Malpractice Lawyers. If your love ones harmed others due to negligence, the Kings County Injury Attorneys or Kings County Birth Injury Lawyer at Stephen Bilkis and Associates can be a great choice for their lawsuit.

Contact Information