In October 2018, the defendant Inna Gordon, a registered nurse, performed a cosmetic procedure on the plaintiff’s chin at Gordon’s private home. The plaintiff subsequently developed cellulitis on her chin where the procedure was performed, which led to scarring. Thereafter, the plaintiff filed a New York medical malpractice action against the defendants Bay Parkway Physicians, P.C., Michael Patin, and Gordon, alleging that the defendants were vicariously liable for Gordon’s alleged negligence as her employer.
Cellulitis
The term cellulitis commonly is used to indicate a nonnecrotizing inflammation of the skin and subcutaneous tissues, usually from acute infection. Cellulitis usually follows a breach in the skin, although a portal of entry may not be obvious. The breach may involve microscopic skin changes or invasive qualities of certain bacteria. The treatment of cellulitis is commonly antibiotics, which are effective in more than 90% of patients. All but the smallest of abscesses require drainage for resolution, regardless of the pathogen. Drainage only, without antibiotics, may suffice if the abscess is relatively isolated, with little surrounding tissue involvement.
The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated March 17, 2022, the New York Supreme Court granted the defendants’ motion. The plaintiff subsequently appealed.
Apparent Agency
In order to rely on apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent’s skill.
The Supreme Court of the State of New York Appellate Division: Second Judicial Department stated in its May 15, 2024 Decision & Order, “The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by submitting evidence that Gordon was an independent contractor and that the plaintiff chose Gordon to perform the procedure at Gordon’s private home without knowing of any connection between Gordon and the defendants … Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.”
Source Krivulya v Bay Parkway Physicians, P.C.
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