NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1289-07T11289-07T1

ESTATE OF RAMONA CORDERO, by

GABINA CORDERO, Administratrix

ad prosequendum, and NICOLAS

CORDERO, individually,

Plaintiffs-Appellants,

v.

CHRIST HOSPITAL,

Defendant-Respondent,

and

SELVIA G. ZAKLAMA, M.D., PATRICK

McGOVERN, M.D. and HUDSON ANESTHESIA

GROUP,

Defendants.

_______________________________________

Argued September 9, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-1568-05.

Brian E. Mahoney argued the cause for

appellants (Blume, Goldfaden, Berkowitz,

Donnelly, Fried & Forte, attorneys; Michael

B. Zerres, of counsel; Mr. Mahoney, on the

brief).

Nan Gallagher argued the cause for respondent (Hardin, Kundla, McKeon &

Poletto, attorneys; Patrick J. Clare,

of counsel; Ms. Gallagher, on the

brief).

The opinion of the court was delivered by

GRALL, J.A.D.

Plaintiffs, the estate and husband of Ramona Cordero, appeal from an order granting summary judgment in favor of defendant Christ Hospital on claims of fraudulent concealment of evidence and vicarious liability for the negligence of defendant Dr. Selvia G. Zaklama. Dr. Zaklama, an anesthesiologist and a member of defendant Hudson Anesthesia Group, practices in Christ Hospital pursuant to the hospital's contract with Hudson. Dr. Zaklama attended to Ramona Cordero (Cordero) during surgery performed at Christ Hospital. Plaintiffs' claims against Dr. Zaklama and Hudson were settled, and their claim against defendant Dr. Patrick McGovern, a surgeon, was dismissed.

Plaintiffs contend the evidence was adequate to permit a jury to find Christ Hospital liable for Dr. Zaklama's negligence under a theory of "apparent authority," which applies when a "hospital, by its actions, has held out a particular physician as its agent and/or employee and . . . a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital." Basil v. Wolf, 193 N.J. 38, 67 (2007) (quoting and approving Arthur v. St. Peters Hosp., 169 N.J. Super. 575, 581 (Law. Div. 1979)). Based on the absence of evidence that Christ Hospital "actively held out" Dr. Zaklama as its agent or "misled Cordero into believing" Dr. Zaklama was its agent, or that Cordero was misled, the trial court dismissed plaintiffs' claim.

We hold that when a hospital provides a doctor for a patient and the totality of the circumstances created by the hospital's action and inaction would lead a patient to reasonably believe the doctor's care is rendered in behalf of the hospital, the hospital has held out that doctor as its agent. We also hold that when a hospital patient accepts a doctor's care under such circumstances, the patient's acceptance in the reasonable belief the doctor is rendering treatment in behalf of the hospital may be presumed unless rebutted.

I

The facts viewed in the light most favorable to plaintiffs are as follows. On the morning of September 14, 2003, Cordero, a fifty-one-year-old insulin-dependent diabetic, woke up vomiting. When her condition did not improve, she sought care in Christ Hospital's emergency room. She was diagnosed with renal failure, admitted to Christ Hospital and underwent dialysis while there. Surgery to implant a catheter that would facilitate ongoing dialysis was done on September 22.

Dr. Zaklama, who is on the staff of Christ Hospital's anesthesiology department through Hudson's contract with Christ Hospital, was on call on September 22. Dr. Zaklama was assigned, randomly, to provide services during Cordero's procedure. Dr. Zaklama did not meet Cordero or any member of her family before September 22.

Dr. Zaklama had one brief conversation with Cordero before the procedure. The doctor gave this account: "I just introduced myself, 'I am Dr. so and so who is the anesthesia [sic] and I'm going to take care of you.'" Dr. Zaklama wore no identification to disclose her affiliation with Hudson and did not tell Cordero that Christ Hospital assumed no responsibility for the care she would provide. Christ Hospital's website identifies Dr. Zaklama as a member of its anesthesia department without reference to Hudson.

During Cordero's operation, the surgeon implanted the catheter without incident, but while the surgeon was dictating his report in the operating room he noticed that Cordero's blood pressure and heart rate had dropped. He alerted Dr. Zaklama, who was still with Cordero. Dr. Zaklama was unable to stabilize the patient, and Christ Hospital's "Code" team was summoned. Although Cordero was resuscitated, she suffered brain damage and never regained consciousness. She remained in a vegetative state until she died approximately three-and-one-half years later.

II

Generally, a principal is immune from liability for the negligence of "an independent contractor, or that of its employees, in the performance of the contracted services."

Basil, supra, 193 N.J. at 62; Restatement (Second) of Torts