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Wisholek v. Douglas3/21/2001
Judgment unanimously modified on the law and as modified affirmed without costs and new trial granted on damages for future pain and suffering only unless plaintiff Barbara W. Wisholek, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the verdict for future pain and suffering to $1.5 million, in which event the judgment is modified accordingly and as modified affirmed without costs in accordance with the following Opinion by Pine, J.: In this case we are called upon to determine, inter alia, whether Public Health Law §4410 (1) precludes a health maintenance organization (HMO) from being held vicariously liable for physical injuries to Barbara W. Wisholek (plaintiff) that a jury found were caused by the negligence of a physician employed by the HMO who was acting within the scope of his employment and in furtherance of the business of the HMO. For the reasons that follow, we conclude that Public Health Law §4410 (1) does not preclude such vicarious liability.
Plaintiff went to the emergency room at Buffalo General Hospital seeking treatment for an abscess on her buttocks. Plaintiff was treated by defendant Gary Douglas, M.D., an on-call physician employed by defendant The Health Care Plan, Inc. (HCP), plaintiff's health care provider and a qualified HMO. After the abscess was drained plaintiff developed complications, including cellulitis. She underwent two more surgeries performed by Dr. Douglas. Some weeks later she suffered further complications and was treated by a colorectal surgeon who performed additional surgeries. Plaintiff currently has a large scar on her buttocks where the abscess had been and has bowel incontinence caused by damage to her external sphincter.
The jury returned a verdict finding that Dr. Douglas was negligent, that his negligence was a substantial factor in bringing about plaintiff's injuries, and that he was acting within the scope of his employment and in furtherance of the business of HCP. It further determined that HCP was negligent but that its negligence was not a substantial factor in bringing about plaintiff's injuries. The jury awarded plaintiff $230,000 for loss of earnings, pain and suffering, and emotional shock to the date of the verdict, and $3 million for future pain and suffering, and it awarded her husband $25,000 on his derivative cause of action.
We conclude that Supreme Court properly denied the pretrial motion of HCP to dismiss the complaint against it based on Public Health Law §4410. Public Health Law §4410, enacted in 1976, provides in relevant part:
"(1) The provision of comprehensive health services directly or indirectly, by a health maintenance organization through its comprehensive health services plan shall not be considered the practice of the profession of medicine by such organization or plan. However, each member, employee or agent of such organization or plan shall be fully and personally liable and accountable for any negligent or wrongful act or misconduct committed by him or any person under his direct supervision and control while rendering professional services on behalf of such organization or plan."
That section explicitly provides that an HMO is not engaged in the practice of medicine. We are not required to determine the effect of the statute on the direct liability of an HMO. With respect to the issue before us, the effect of the statute on the vicarious liability of an HMO, we conclude that nothing in the statute expressly bars an HMO from being held vicariously liable for the acts of its employees.
Assuming, arguendo, that the statute could be considered ambiguous, we nevertheless conclude that it does
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