(concurring). The question of whether plaintiffs established a prima facie case is, in my view, an extremely close one. For one thing, the disagreement of the experts as to the initial choice of a resuscitatory method would not, in and of itself, establish a departure from accepted medical standards. “There is no authority that a doctor * * * must use what some doctors consider the best method if a method which is accepted by respectable medical authority is adopted” (Gielskie v State of New York, 10 AD2d 471,474, affd 9 NY2d 834; see, also, Henry v *89Bronx Lebanon Med. Center, 53 AD2d 476, 480; Schreiber v Cestari, 40 AD2d 1025,1026). Moreover, aside from establishing a departure from accepted medical practice, a plaintiff must also prove that the departure caused the injuries sustained (Koehler v Schwartz, 48 NY2d 807; Monahan v Weichert, 82 AD2d 102, 106). On this issue, “conjecture and speculation * *• * is no substitute for proof” (Kinch v Adams, 46 AD2d 467, 469, affd on opn at App Div 38 NY2d 792).
Though I find the proof on the issue of causal connection to be rather sparse (cf. Gonzales v Fuchs, 69 AD2d 831; Segarra v Wyckoff Hgts. Hosp., 58 AD2d 644), given the confusion as to the general verdict, I agree that, at this juncture at least, the interest of justice warrants a new trial, rather than a dismissal of the complaint. Nonetheless, I must record my disagreement with the majority’s indorsement of the trial court’s refusal to grant Dr. DiFabio’s request that the jury be instructed on the emergency doctrine and the trial court’s charge that any acts of negligence committed by Dr. DiFabio should be imputed to the hospital.
i.
FAILURE TO CHARGE THE EMERGENCY DOCTRINE
Plaintiffs, of course, do not dispute that Dr. DiFabio was faced with an emergency situation when the baby did not initiate spontaneous respiration at delivery. After all, vigorous resuscitation was required and there was no time to relax and reflect upon the most prudent course to undertake. Plaintiffs’ counsel, plaintiffs’ experts, and the treating physicians all characterized the situation as an “emergency”.
Although a defense expert explained that medical standards are different in an emergency context, the trial court was apparently persuaded by plaintiffs’ argument, repeated here, that the emergency doctrine has no application in a medical malpractice case. In my view, this was plain error.
The emergency doctrine enters in two distinct aspects of malpractice litigation and it is useful to emphasize that we are not concerned with emergency treatment where the physician is alleged to have exceeded the scope of consent or indeed has acted without requisite consent at all (see Prosser & Keeton, Torts [5th ed], § 18, pp 117-118; 45 NY Jur [rev vol], Physicians and Surgeons, § 163). The cause of action in such circumstances is traditionally viewed as sounding in assault (45 NY Jur [rev vol], Physicians and Surgeons, § 160; Note, Consent to Surgery — A Dilemma, 37 Alb L Rev 591; but see Dries v Gregor, 72 AD2d *90231, 235-236 [opn by Cardamone, J.], calling for abandonment of intentional tort theory; Education Law, §§ 6527, 6611, subd 6; Comment, Good Samaritans and Liability for Medical Malpractice, 64 Col L Rev 1301) and questions of whether the emergency nature of the circumstances precluded the obtaining of consent are called into play (Prosser & Keeton, op. cit., § 18).
In this case, our concern is with the traditional emergency rule applied when the actor is alleged to have been negligent. Prosser and Keeton state this rule as follows (Prosser & Keeton, op. cit., § 33, p 196): “The courts have been compelled to recognize that an actor who is confronted with an emergency is not to be held to the standard of conduct normally applied to one who is in no such situation. An emergency has been defined as a sudden or unexpected event or combination of circumstances which calls for immediate action; and although there are courts which have laid stress upon the ‘instinctive action’ which usually accompanies such a situation, it seems clear that the basis of the special rule is merely that the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation. The actor’s choice ‘may be mistaken and yet prudent’ ”.
The “sudden or unexpected occurrence * * * calling for immediate action” definition is hornbook New York law (1A Warren, NY Negligence, Actionable Negligence, § 15.01). The majority’s misreading of New York law as conjunctive rather than disjunctive is reminiscent of the charge errors often made with respect to the defense of insanity (see People v Horton, 308 NY 1, 15).
Be that as it may, the emergency doctrine is plainly applicable to medical treatment. As a leading text recognizes, “physicians should not be held to the same standard of care in emergency situations as they are held to under normal circumstances” (2C Warren, NY Negligence, Physicians and Surgeons, § 3.03 [2] [b]). Courts have consistently approved the giving of an emergency charge in similar cases (Linhares v Hall, 357 Mass 209; Markman v Kotler, 52 AD2d 579; cf. Scott v Kaye, 24 AD2d 890), and it is the standard in sister States. Thus, Alexander’s Jury Instructions on Medical Issues ([2d ed], § 3-46, p 139) recommends the following instruction:
*91“3-46 Standard of care relaxed in emergency situations.
“There is evidence tending to show that the practitioner involved as a defendant in this case was confronted with an emergency at the time of the alleged acts resulting in injury to the patient. An emergency is a condition which, in the professional judgment of a competent medical practitioner under the same or similar circumstances, would require immediate action to protect the patient’s life or health. If you find the situation to have constituted an emergency, not of defendant’s own creating, you must take into consideration the fact that ordinarily one does not have the time to exercise the same degree of deliberation and care as would otherwise be expected. To find the defendant’s conduct to constitute negligence you should find that a competent practitioner in the same situation would not, in such a situation, have acted in the manner you find defendant to have acted.” (See, also, Linhares v Hall, 357 Mass 209, 210, supra, approving charge that “due consideration must be given” to the “fact of the emergency” and that “there is not the usual time for thought and consideration of * * * actions as there would be if there was not an emergency” in circumstances practically identical to the case now before us.)
Indeed, if, as explained above, a physician does what is thought to be best after “careful examination” and is not liable for. a “mere error of judgment”, then it surely is appropriate to caution the jury that such a “careful examination” must be viewed in the context of the circumstances then faced by the physician. A “careful examination” conducted in the jury room, with the benefit of hindsight, cannot approximate a split-second decision in the face of an emergency.
ii.
VICARIOUS LIABILITY OF PHYSICIANS’ HOSPITAL
After hearing extensive arguments, the trial court, relying upon Mduba v Benedictine Hosp. (52 AD2d 450), instructed the jury that any acts of negligence committed by Dr. DiFabio should be imputed to the hospital. Again, I disagree with the majority’s analysis and find the charge erroneous.
Dr. DiFabio was not an employee of the hospital, but one of a group of independent contractors. The hospital had no control over his patients or any say in the choice of anesthesia.
In Holzberg v Flower & Fifth Ave. Hosps. (39 AD2d 526, affd 32 NY2d 716), the Appellate Division, First Department, held that a hospital was not liable for the acts of an anesthesiologist in such circumstances. Holzberg is squarely on point, and, given *92its affirmance by the Court of Appeals, should be followed by this court.
Mduba v Benedictine Hosp. (supra) and similar cases recognizing that there may be circumstances under which a hospital may be liable for acts of independent contractors (see, e.g., Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794), are plainly distinguishable. They involve instances in which the hospital held itself out to the public as an institution furnishing physicians, staff, and facilities for emergency treatment. In both Mduba and Rivera, the hospital itself assigned the attending physician. Grewe v Mount Clemens Gen. Hosp. (404 Mich 240), relied upon by the majority, was distinguished on that basis in Wilson v Stilwill (411 Mich 587), the Supreme Court of Michigan noting that the existence of an independent physician-patient relationship vitiates the imposition of vicarious liability on the hospital (see, also, Hospital’s Liability for Injury or Death to Patient Resulting From or Connected with Administration of Anesthetic, Ann., 31 ALR3d 1114).
Here, Mrs. Mertsaris was the private patient of Dr. Arabos. When the services of an anesthesiologist were required, she and her husband, both of whom were physicians, met Dr. DiFabio and had the opportunity to either retain or reject his services. This was not an emergency situation in which the hospital provided a physician without consulting the patient (see Kimball v Scors, 59 AD2d 984). “In short, where an act of malpractice is committed by a person employed by the hospital, the latter may be held liable derivatively under the doctrine of respondeat superior; where the negligent person is instead retained by the patient himself, there is no vicarious liability” (2B Warren, NY Negligence, Hospitals, § 4.01).
Admittedly, it is difficult not to feel a great deal of sympathy for the arduous life the infant plaintiff faces. But Appellate Judges must examine a case with their heads and not their hearts and, unless the world is made over and physicians cast in the role of insurers, the verdict cannot stand. Accordingly, I agree that the judgment must be reversed insofar as appealed from.
Gibbons and Rubin, JJ., concur with O’Connor, J.; Titone, J. P., concurs in the result, with a separate opinion.
Appellant Francis S. DiFabio died prior to the argument of this appeal and the Public Administrator of the County of New York was appointed administrator of his estate for the purpose of this appeal. On the court’s own motion, the Public Administrator of the County of New York is substituted as party appel*93lant for the said Francis S. DiFabio and the caption is amended accordingly.
Judgment of the Supreme Court, Kings County, entered June 9, 1982, reversed insofar as appealed from, on the law and the facts and as a matter of discretion, first decretal paragraph vacated, new trial granted as to appellants, and action as to the remaining defendants severed.
Appeal by Francis S. DiFabio and Nicholas B. Arabos from an order of the same court, dated July 7, 1982, dismissed as academic in light of our determination with respect to the judgment.
Appeal by 73rd Corp., doing business as Physicians’ Hospital, from so much of the order of the same court, dated July 7, 1982, as denied those branches of its motion which sought to set aside the jury verdict against it and in favor of plaintiffs, dismissed as academic, in light of our determination with respect to the judgment, and order otherwise affirmed.
Costs as between plaintiffs and appellants are to abide the event of the new trial.
No costs or disbursements are awarded to Constantine A. Gotsis.