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ANNA RASCHEL v. BENITO RISH (04/05/85)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1985.NY.43347 <http://www.versuslaw.com>; 488 N.Y.S.2d 923; 110 A.D.2d 1067 April 5, 1985 ANNA RASCHEL, ALSO KNOWN AS ANNA M. RASCHEL, RESPONDENT,v.BENITO RISH, DEFENDANT AND YONKERS PROFESSIONAL HOSPITAL, APPELLANT Present -- Dillon, P.j., Boomer, Green, O'Donnell and Schnepp, JJ.


Present -- Dillon, P.j., Boomer, Green, O'Donnell and Schnepp, JJ.

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendant hospital appeals from the denial of its motions for summary judgment on plaintiff's direct and derivative causes of action for medical malpractice and to dismiss her claim based on lack of informed consent. Plaintiff claims that her attending physician, defendant Dr. Benito Rish, negligently performed at the defendant hospital a submucous resection and rhinoplasty operation on her nose on May 25, 1977 and a later operation on September 6, 1977 and thereafter negligently treated her at his office by, inter alia, injecting liquid silicone into her nose. Plaintiff claims that the hospital is directly liable for its own negligence in failing to furnish skillful care, in negligently obtaining plaintiff's consent to the operation, and in not revoking Dr. Rish's admitting privileges since it knew or should have known that Dr. Rish had been sued for malpractice and allegedly had been involved in illegal, unethical and improper medical practices. She also claims that the hospital is derivatively liable because Dr. Rish performed the surgery as an agent of the hospital.

The derivative claim is dismissed. The undisputed facts demonstrate that plaintiff engaged Dr. Rish as her physician and paid him directly for his services and that she consulted with him at his private office where the alleged silicone injections were administered. Although Dr. Rish was a part owner of defendant private proprietary hospital and served as president of its board of directors and as chief of plastic surgery, there is no evidence that he was an agent or employee of the hospital. A physician's involvement as a director or stockholder of a hospital does not supply any inference that the hospital controlled or supervised his private practice plaintiff failed to submit any other proof that Dr. Rish was the actual or apparent agent of the hospital, hence, under the circumstances here, the hospital cannot be held vicariously liable under the doctrine of respondeat superior (Fiorentino v Wenger, 19 N.Y.2d 407; Smith v Ferro, 86 A.D.2d 752).

Further, the record does not establish that the hospital failed to furnish skillful care or that it assumed the obligation to obtain plaintiff's informed consent and partial summary judgment is directed in favor of the hospital (CPLR 3212 [e]). In our view, however, plaintiff has established the existence of issues of fact relating to the hospital's breach of its duty to investigate Dr. Rish's competency before renewing his staff privileges. While a hospital is not responsible for the actual treatment of a patient by a private physician with staff privileges, the failure of a hospital to develop and adhere to reasonable procedures for reviewing a physician's qualifications creates a foreseeable risk of harm thus establishing an independent duty to such patients (Bowhall v Hanlon, 99 A.D.2d 857; Elam v College Park Hosp., 132 Cal App 3d 332, 183 Cal Rptr 156; Johnson v Misericordia Community Hosp., 99 Wis 2d 708; see also, Fiorentino v Wenger, 19 N.Y.2d 407, supra; Byork v Carmer, 109 A.D.2d 1087). To counter the hospital's contention that it had followed reasonable credentials procedures in reviewing Dr. Rish's qualifications, plaintiff established that Dr. Rish had been sued at least three times for malpractice for surgery performed in 1973 and 1974 and for silicone injections in 1972. Thus, whether the hospital negligently failed to restrict Dr. Rish's staff privileges is a question of fact which should be determined at trial. Accordingly, defendant hospital is entitled to judgment dismissing (1) plaintiff's derivative cause of action and (2) part of her cause of action which claims that the hospital is liable for its own negligence. (Appeal from order of Supreme Court, Monroe County, Davis, J. -- summary judgment.)

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