Employer medical facility or hospital can remain vicariously liable for an employee-physician who is dismissed pursuant to the statute of limitations.

In this medical malpractice suit, a deceased patient's family sued a hospital and medical group, along with four physicians it employed, for wrongful death and medical malpractice. One of the doctors moved to dismiss the complaint based upon an Affidavit of Non-Involvement. The motion was granted, and the plaintiff moved to add the correct doctor, Tara Kiger, as a defendant. Dr. Kiger subsequently filed a motion for summary judgment on the basis that the claims were time-barred as she was added outside of the two-year statute of limitations period. The motion was granted and the complaint dismissed on statute of limitations grounds. The defendant physician group and hospital – whose liability stemmed from Dr. Kiger’s treatment – also moved to dismiss the claims against them for vicarious liability stemming from Dr. Kiger's actions as the alleged tortfeasor. In a move that was admittedly against precedent, the Appellate Division reversed the trial court’s decision that had granted the dismissals on the premise that the claims involving Dr. Kiger’s treatment were “res judicata” and, instead, concluded that "an employer can be subject to suit for the negligent actions of its employee under the principle of respondeat superior even though the employee is dismissed because the claims against her or him were filed outside of the statute of limitations." Significantly, the court pointed out that the various entities had all been sued within the limitations period, potentially narrowing the scope of this decision.

Case Law Alert - 4th Qtr 2012