Salvatore v. Winthrop University Medical Center

In an action to recover damages for medical malpractice, the defendant William Sonstein appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), entered December 23, 2004, as granted those branches of the plaintiff’s cross motion which were for summary judgment on the issue of liability for medical malpractice as to him and to strike his answer based on spoliation of evidence, and the defendant Winthrop University Medical Center separately appeals, as limited by its brief, from so much of the same order as granted those branches of the plaintiffs cross motion which were for summary judgment on the issue of liability for medical malpractice as to it and to strike its answer based on spoliation of evidence, and denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiff’s cross motion and substituting therefor a provision denying the plaintiffs cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendants.

Contrary to the contentions of the defendant hospital, the plaintiff established that the hospital was vicariously liable for any negligence on the part of the physician during the procedure. Although the physician was not an employee of the hospital and therefore the hospital would not ordinarily be vicariously liable for his malpractice (see Quezada v O’Reilly-Green, 24 AD3d 744 [2005]; Orgovan v Bloom, 7 AD3d 770 , 770-771 [2004]), an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing (see Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881 , 883 [2005]; Orgovan v Bloom, supra). In the instant matter, the evidence presented established that the plaintiff was brought to