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August 2019: Summary Judgment Motion: Medical Malpractice and Vicarious Liability for Ophthalmological Practice - Kings County

August 15, 2019

Senior Partner Rosaleen McCrory, Of Counsel Maureen P. Blazowski and Of Counsel Gregory A. Cascino obtained dismissal of a medical malpractice and vicarious liability action brought by a then 74-year-old woman who alleged that co-defendant oculoplastic surgeon, an independent contractor to defendant’s professional corporation, negligently performed a left lower eyelid cyst excision resulting in a corneal abrasion. The plaintiff was a patient of the P.C. for approximately 8 years prior to the alleged negligence, during which visits she received routine ophthalmological examinations for cataracts. She was referred to the codefendant oculoplastic surgeon by one of the defendant’s employed O.D.’s, specifically in consideration of surgery. Notably, the codefendant also saw the plaintiff at two other unaffiliated office locations - one of which is another codefendant to this action. The plaintiff did not advance any additional independent claims as to the professional corporation.

 

MCB moved for summary judgment, requesting dismissal of plaintiff’s vicarious liability claims.  Our motion was supported by an affidavit by the Chief Medical Officer of the P.C., wherein it was confirmed that co-defendant had never been employed by the P.C. Our motion was also supported by an ophthalmological expert who opined that all care rendered to the plaintiff comported with the standard of care. Plaintiff opposed our motion without an expert affirmation. Instead, plaintiff argued vicarious liability by estoppel based upon shared office space and that the professional corporation provided staff and billing services to the codefendant surgeon. The Court held that the sharing of office space and provision of office staff and billing services alone was insufficient to impute vicarious liability to the P.C., thereby dismissing plaintiff’s claims as to MCB’s defendant. Please note, this case was continued against the codefendant oculoplastic surgeon and the ambulatory surgery facility where the plaintiff underwent the surgery at issue.

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