Our last column addressed vicarious liability of hospitals for malpractice by non-employee physicians where the patient entered through the emergency room or otherwise sought care from the hospital rather than from a particular physician. In those circumstances, the hospital should be liable for any negligent care because the patient was relying directly upon the hospital to provide care and treatment.

As we noted in that column, when someone is admitted to a hospital as the patient of a private attending physician, the hospital may still be subject to vicarious liability under the doctrine of ostensible agency for physicians who become involved in the patient's care during the admission. This question commonly arises with anesthesiologists and radiologists, although it may also apply where any physician is assigned by a hospital to provide a service or a consultation. This month's column examines hospital liability under ostensible agency in these circumstances.

The critical requirement for ostensible agency is that the patient must have had a reasonable belief that the physician was employed by, or acting on behalf of, the hospital. However, the specific elements of the ostensible agency doctrine have been the subject of varying articulations over the years. For instance, the First Department has typically stated that the doctrine applies “where the physician was provided by the hospital or was otherwise acting on the hospital's behalf, and the patient reasonably believed that the physician was acting at the hospital's behest.”¹ In recent years, however, the Second and Third Departments have described the doctrine as requiring words or conduct by the hospital that were misleading and that the patient relied upon in accepting the physician's services. As set forth in Dragotta v. Southampton Hosp., 39 A.D.3d 697 (2d Dept. 2007):