Greer v Goldweber

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Greer v Goldweber 2012 NY Slip Op 30684(U) March 19, 2012 Supreme Court, New York County Docket Number: 113781/07 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312112012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY c, 6 PRESENT: 1 3 PART g Just ic o - - v MOTION sEa. N O . 2- P A P E R S NUMB E H E D Noticc of Motioril Ordor t o Show Cause - Affldavils - Exhibits l3,3I ... t Answoring Affidavits - Exhibits . Roplylng Affldnvlts Cross-Motion: L-j Yes a NO Upon the foregolng papers, it is ordered tha this motion MAR 20 2012 NEW YORK COUNJY CLERKS OFFICE J. s.c. , - Check one: L FINAL DISPOSITION Check if appropriate: __ I DO NOT POST SUBMIT ORDER/ JUDG. c:1 __- REFERENCE SETTLE ORDER/ JUDG. [* 2] Plain tiff. Index No. 11378 1/07 Decision and Order -againstUKIAN GOLDWEBER, M.D., BRIAN A. GOLDWGBER, M.D., LLC, ABBE J. CARNI, M.D., ABBE J. CARNI, M.D., P.C., EDWARD S. GOLDBEKC;, M.D., P.C., and EDWARD S.GOLDBERG, M.D., Defcndants. FILED MAR 20 2012 Motion Sequence Numbers 002 and 003 are liercby consolidated for disposition. In Sequcnce 002, defendants Abbe J. Carni, M.D. and Abbe J. Carni, M.D., P.C. ( Carni P.C. ) (collectively thc Carni Defendants ) move, by order to show cause, for an ordcr pursuant to C.P.L.R. Rule 32 12 granting them summary jiidgrncnt and disinissing plaintiff Timothy Greer s complaint. In Sequence 003, defendants Edward S. Goldberg, M.D. and Edward S. Goldberg, M.D., P.C. ( Goldberg P.C. ) (collcctively thc Goldbcrg Defendants ), iiiove, by order to show causc, for partial summary judgrncnt disinissing plaintiffs claims sounding in punitivc damages, negligent hiring and retention, lack orinfomed consciit, and vicarious liability for the acts and omissions of Brian A. Goldwebcr, M.D. This case is m e of a nurnbcr of cases involving patients of Dr. Goldweber, an anestliesiologist whose license to practice iiiedicinc lias since becn revokcd in New York. Dr. Defendants Brian Goldweber, M.D., and Brian A. Goldweber, M.D., LLC, havc been dischargcd in bankruptcy and have not appeared in this action. [* 3] Goldweber was retained by Carni P.C., and Carni P.C. had ii contract to providc anesthesiology services to patients ofColdberg P.C. Mr. Grcer underwent a colonoscopy on August 14,2006. Dr. Goldberg pcrformcd the colonoscopy, and Dr. Goldwcber administercd thc anesthesia using proporol. Plaintiff testified that he recalled that prior to the procedure, Dr. Goldweber spoke to him for about a minute, during which Dr. Goldwebcr introduccd himself and briefly explained how hc would administcr thc anesthesia. The colonoscopy and accompanying anesthesia were then pcrfonixd. The propriety of the colonoscopy is not at issue in this lawsuit. In 2007, Dr. Goldweber became the focus of an investigation by the New York City Department of Health ( NYCDOII ) after a number of his patients were discovered to have contracted hepatitis B and C after thcir trcalriicnt with him. NYCDOH eventually deterniined that the manner in which Dr. Goldwebcr administcred anesthesia caused a hcpatitis outbreak among lhesc patients. Specifically, NY CDOH found that Dr. Goldweber had been using multi-dose vials of propofol, an ancsthetic, on more than one patient. The contamination ofthe vials occurred whcn Dr. Goldweber would rcinserl into a vial a syringe that hc had already used on a sourcc paticnt for hepatitis. Then, when lie used propofol from the same vial on subsequent paticnts, he exposed them to the virus from the sourcc patient. Indcpendent from the NYCDOH invcstigation, in Fcbruary 2007, Mr. Greer found out that he had contracted hepatitis C. Hc was startcd on treatment for the hcpatitis C infection, and by June 2007, tests revealed that he had clcared thc virus. NYCDOH later detennincd that Mr. Grcer had probably contracted the virus during the August 14,2006 colonoscopy, based on thc test results of thc other patients trcated on the same day. -2- [* 4] During the course ofNYCDOH s investigation, it reportcd the situation to the Ncw York Statc Department of Health Statc Office of Profcssional Medical Conduct ( OPMC ). In May 2007, OPMC began its own invcstigatioii ofDr. Goldweber, who agreed to discontinue his medical practice pending that invcstigation. Meanwhilc, shortly before Dr. Goldwcber discontinued his practice, n r . Carni, who had not annually checked whether Dr. Goldwebcr s credcntialiiig and malpractice insurance were up-to-date, learned from Dr. Goldwebcr that his malpractice carrier had dropped his coverage in the spring of 2004. Cami P.C. immediately discharged Dr. Goldweber. In October 2008, OPMC chargcd Dr. Goldwcber with gross incoiiipetencc; gross negligcnce; negligcnce and incompetence on more than one occasion; and failurc to coiiiply with provisions governing thc practice of medicine by violating infection control practiccs, inappropriately using propofol, and allowiiig his infection control ccrtifmtion to lapse. All ofthc chargcs wcre sustained by a determination and order of March 20, 2009, and Dr. Cioldwcber s medical licciise was revoked. Mr. Greer cornnienced this lawsuit on October 12, 2007, by purchasing an index number aiid tiling a suininons and verified complaint. He asserted claims sounding in medical inalpracticc and negligcnce for Dr. Goldwcber s transmission of hcpatitis C to him; claims against the Carni and Goldberg Defciidants sounding in their vicarious liability Tor Dr. Goldweber s transmission of hepatitis C to hiiii; claims for lack of iiifonned consent against all dcfendants; and claims sounding iiegligcnt hiring, supervision, and retciition as against thc Carni and the Goldberg Defendants. In responding to these motions, plaintiff has agrced to withdraw his claims sounding -3 - [* 5] in lack of infonned consent. Since there is no opposition to those branches of the moving defendants respective motions seeking to dismiss plaintiff s claims for lack of infonned consent, those branches of the motions are granted. As Dr. Goldwcber has been discharged in bankruptcy, his injured patients lawsuits have primarily focused on the relationships between Dr. Goldweber and other parties who may be liable to these patients due to either their vicarious liability for Dr. Goldwebcr s acts or their negligent hiring or retention of him. During the cvents in question, Carni P.C. retained Dr. Goldweber, through Brian A. Goldwcber, M.D., LLC ( Goldwcber LLC ), to provide anesthesiology services to various inedical practices that performed arnbulatory procedures. Dr. Carni, a board certified anesthesiologist, was the president, sole shareholder, and sole administrator of Carni P.C. I n retaining Dr. Goldweber, Dr. Carni testified that he took into consideration: (i) Dr. Goldwebcr s experience, which indicated that he worked as an attending anesthesiologist for almost twenty (20) years, cumulatively, at Rochester General Hospital and at Lakeside Mcmorial Hospital; (ii) four highly favorable letters of rccomnicndation from surgeons who worked with him at Rochester General Hospital; and (iii) a letter of recommendation from an nnesthesiologist who was Dr. Goldweber s co-membcr at Rochester General Hospital s anesthesiology department and who subsequcntly became the chief of the anesthesiology department at Lakeside Mcinorial Hospital, He did not contact the OPMC nor conduct any other independent checks on Dr. Goldwcber. Ur. Carni did not know that Rochester General Hospital had lirriitcd Dr. Guldweber s privileges by no1 allowing hiin to administer anesthesia for major vascular and cerebral vascular treatment, or for treatment involving children under five years old. Dr. Carni was also unaware that -4- [* 6] in 1999, OPMC had chargcd Dr. Goldweber with several acts of misconduct, including altering a medical record; failing to monitor a patient; administering anesthesia that was contraindicaled by a patient s medical histoiy; administering a long acting anesthesia without securing apaticiit s airway; and railing to slay wilh a palient uiilil shc bccaiiic nicdically stablc. In April 1999, Dr. Goldweber adinilled guilt to the charges insofar as thcy iniplicatcd him in iicgligencc, and OPMC suspcndcd his license for thrcc years. Thc suspension was stayed as long as Dr. Goldweber complied with a number of terms, including that his practice be supervised for one year and randomly supervised thereafter; that he complete a training program; and that he pass a competency evaluation. On or about February4,2002, OPMC charged Dr. Goldweber with misrepresenting the status ofhis license and Kochcster General Hospital s limilation on his privileges on two job applications. Dr. Goldwcbcr adinilled lo the prorcssional inisconduct and was lined $20,000. Prior to retaining Dr. Goldweber, Dr. Carni hrthcr assessed Dr. Goldweber s qualifications by personally observing Dr. Goldwebcr s administration of ancsthcsia, including his use o r pi-opofol fi-orn multi-dose vials, to six to eight patients. Dr. Carni tcstificd that hc ncvcr observed Dr. Goldwcber reuse a syringe lo dose a patient froin a vial ofpropofol. After Dr. Carni delermined that he was satisficd with Dr. Goldweber s perhnnance, Cami P.C. and Goldweber LLC entered into an oral agrcciiienl that Dr. Goldweber would provide anesthesia services on behalf of Canii P.C. In 2006, Dr. Carni and Dr. Goldwcbcr enlered into a written agreement, which was allegedly identical to thc oral version, but included a non-compete provision. Dr. Carni tcstificd that at the time or his retention, Dr. Goldweber had inalpractice insurance and an infection control ccrtificale daled May I , 2002. -5- [* 7] Dr. Goldwcber workcd five days a week providing ancsthcsia services for the approximately ten medical practices to which he was sent by Dr. Carni. According to Dr. Goldweber, hc had frec rcin as to the medications and supplies he ordered, and the Carni Defendants did not control h i s administration ofmedications or the techniques he used. Dr. Carni testified that the routine was to use multi-dose vials on more than one patient. His practice did not use single-use (20 i d ) vials orproporol. Dr. Goldwcbcr continued Dr. Carni s practice o r using multi-dose vials. It docs not appcar that Dr. Goldweber worked anywhere but whcrc the Carni Dcfcndants sent him. Dr. Goldweber s hours and whcre he worked were deterniined by thc Carni Dcfcndants. Carni, P.C. paid Dr. Goldwcbcr $12,000 evcry two weeks, with yearly salary increases and bonuses, tliough it did not furnish him with hcalth insurance. Dr. Goldweber was supposcd to obtain his own iiialpractice insurance and pay his own taxes as a 1099 employee. Carni P.C. furnished Dr. Goldweber with the forms and anesthesia charts that lie used during thc proccdurcs, and paid for all equipment and riicdication which Dr. Goldweber used. Carni P.U. paid rent to the offices where aneslliesiology services were provided in exchangc for use of office space, a computer, a telephone, and a place to store its rnedications and equipment. Carni P.C. determined the patients fees and tlie patients, or their insurancc companies, wcrc billed directly for the anesthesiology services rendered. Thc bills did not reflect that the services wcrc reiidcred by the anesthesiologists who actually rendcrcd thc services. Carni P.C. placed Dr. Goldwcbcr in Dr. Goldberg s office as his primary anesthesiologist. Dr. Carni advised Dr. Goldberg that if he were unhappy with Dr. Goldweber, Dr. Carni would provide someone else. Dr. Carni adviscd Ur. Coldberg that Carni P.C. would cnsurc that the anesthesiologists providcd would be licensed, would have the required certifications, and -6- [* 8] would cany rnalpractice insurance. Dr. Goldberg did not indcpendently invcstigate Dr. Goldwcbcr s qualifications, but relied on Dr. Carni to do so. Dr. Goldberg testiiicd that he believcd that an employer-employee rclationship existed bctween n r . Carni and Dr. Goldwcber because Dr. Carni vouched for his anesthcsiologists credentials and told Dr. Goldberg that the anesthesiologists worked for him, wcre paid by him, and were maintaining their credcntials. Dr. Goldbcrg testified that had he known of Dr. Goldweber s prior sanctions, he would havc further investigated before allowing Dr. Goldwcber to administcr anesthesia to patients. The inoving dcfendants now seck sumrnaryjudginent. The law is well settled that the movant on a summary judgment application bcars the initial burden of prima facie establishing thcir entitlemcnt to the requested relief, by eliminating all material allegations raised by the pleadings. Alvare;! v. Prospect Hosp., 68 N.Y.2d 320, 324 (1 086); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 85 I , 853 (1985). Failurc to do so mandates the denial of the application, rcgardless of the sufficiency of the opposing papers. Id. Once a moving party makes its required showing, the burden shifts to the other sidc to dernonstratc the existencc of a material fact requiring a trial of the issuc. Dr. Carni maintains that he cannot be held vicariously liable for Dr. Goldweber s iiicdical malpractice bccause he did not personally hire Dr. Goldweber, rather, his professional corporation Carni P.C. hircd Dr. Goldwcbcr. Dr. Carni asserts that B.C.L. (j 150S(a) precludes the imposition of liability against the sole shareholder of aprofcssional corporation whcrc the individual did not directly render or supervisc the person rcndering the professional services giving rise to the allegcd malpractice. He argues that thcre is no evidence that he was prescnt during thc procedure; -7- [* 9] administercd anesthesia to the patiait; or personally directed Dr. Goldwebcr in his administration ofancslhesia to Mr. Grccr on August 14, 2006. Plaintiff largcly rails to addrcss Dr. Carni s arguments undcr B.C.L. I$ 1505(a), though he directs the court to anothcr decision in a case against Dr. Goldwebcr and Dr. Carni (and other defcndants) pcnding in Supreme Court, Kings County, tilled Von StackelberR v. Goldweber, 201 I N.Y. Slip Op. 52158(U), 33 Misc. 3d 1229A (Sup. Ct. Kings Co. 201 1) (Steinhardt, J.). In Stackelbcrg, the court permitted the plaintift s claim against Dr. Canii for vicarious liability to survive on the basis thal issues of fact remained as to whether Dr. Carni pennitted negligent conduct by those undcr his supcrvisioii or failed to exercise propr control over his agents. Plaintiff asserts that cstoppel should apply to prcclude Dr. Carni from relitigating his liability. However, issue preclusion is no1 available herc, where it has not been detcnnined that the issues are idciilical bclween the cases and where there has been no judgment rendered in Von Stackelberg. In this case, plaintiff has failcd to rebut Dr. Carni s showing that B.C.L. 5 1505(a) applics to preclude the imposition of liabilily against Dr. Carni, personally, for the acts of Dr. Goldweber. Plaintiff argues that Dr. Carni had direct supervision over Dr. Goldweber, but his examples pcrtain to the administrative side ofthc business ofproviding anesthesiologists, not to niedical techniquc. Further, thc fact that Dr. Goldweber may havc adopted Dr. Carni s technique for adtninistcring propofol does not show that nr. Canii had direct supervision over Dr. Goldweber s medical tcchnique. There is 110 allegation that Dr. Cami was either prcsent during Mr. Greer s procedurc or had any supervision ovcr the anesthesia administered by Dr. Goldweber during that procedure. Thc crux ofthe vicarious liability claim is that Dr. Carni should be held liable for supcrvising the alleged malpractice, but -8- [* 10] thcre is no allegation that Dr. Carni did so in this case. Accordingly, the claim against Dr. Carni, individually, for vicarious liability for Dr. Goldweber s malpracticc inust be dismissed. Carni P.C. argues that it cannot be hcld vicariously liablc for Dr. Goldweber s nialpractice becausc Dr. Goldweber was ail indepcndent contractor. Carni P.C. maintains that it did not exercise control ovcr the mcans or results of Dr. Goldweber s work. It asserts that the evidencc shows that Dr. Goldwebcr controlled the means and results of his own work and madc his own decisions about technique; was paid as anon-employee; received no fringe benefits from Carni P.C.; and did not receivc medical inalpractice coverage under Carni P.C. s policy but was obligated to iiiaintain his own iiialpractice insurancc. Carni P.C. asscrts that thc fact that it had soinc general supervision over Dr. Goldwcber is not dispositive; that the non-compete clause in thc contract betwccn Carni P.C. and Dr. Goldweber was limited in nature and was only intendcd to prevent Dr. Goldwebcr from working directly for a practicc that had a contract with Carni P.C.; and that Carni P.C. s conti-ol ovcr Dr. Goldweber s schedule would only be dispositive if that control affected thc manner ofDr. Goldweber s administration ofanesthesia, which it did not. Canii P.C. maintains that it did not supcrvise Dr. Goldweber in perforniing anesthesia on Mr. Greer. Cami P.C. firrthcrargues that it cannot be held vicariously liablc for Dr. Goldweber s action based on the theory of apparent authority because therc is no cvidence that Carni P.C. held itself out as Dr. Goldwcber s employer, nor is thcre any cvidence that Mr. Greer reasonably rclied on any such statements. Carni P.C. sets forth that Dr. Goldwcber testified that he made no refercnce to Dr. Carni or Cmii P.C. when introducing himself to paticnts. -9- [* 11] Plaintiff argucs that issues of fact cxist as to whether Carni P.C. can be held vicariously liablc for Dr. Goldweber based on actual agency. Plaintiff docs iiol address whether Carni P.C. could be held vicariously liable for Dr. Goldweber based on ostensible or apparent agency. Plaintiff sets forth that Dr. Goldbcrg testified that Dr. Carni held Dr. Goldweber out to bc his employee in Dr. Goldberg s discussions with Dr. Carni. Plaintiff also argues that Carni P.C. controlled the nieans and inanncr in which Dr. Goldweber administered ancsthcsia bccausc Dr. Goldweber testified that, prior to working for Carni P.C., he had never used the techniquc of administering anesthesia with a multi-dose vial and a spike for drawing propofol from the vial (the technique at issue in this case), but that once lie started working for Carni P.C., he began using this tcchnique because that was the system alrcady in place. Plaintiff also points out that Carni P.C. had control ovcr Dr. Goldweber s schedule; paid for Dr. Goldweber s supplies; and paid Dr. Goldweber a flat rate every two wceks for five days of work a weck, including vacation time and time off. In general, the employer of an independent contractor is not liable for injury caused to a third party by an act or omission ofan indcpcndent contractor[.] Lazo v. Mak s Trading Co., - 190 A.D.2d 165, 167 (1st Dep t 15)93), affd 84 N.Y.2d 896 (1994). The question ofwhether liic., someone is an independent contractor or employee is a question of fact conccrning which party controls the methods and means by which thc work is to he done. m,199 A.D.2d at 166. The issuc of whether one is an employee or a n independent contractor is usually for the tricr of fact. Carrion v. Orbit Mcssenger, 82 N.Y.2d 742,744 ( I 993). However, whcn the evidence on the issue ofconlrol over thc work has no conflict, the court may determine the issuc as a Inalter or law. &, 199 A.D.2d at 166. SCC also Greene v. Osterhoudt, 251 A.D.2d 786, 787 (3d Dep t 1998). -10- [* 12] Dctcniiining whether a person acts as an employee or an independent contractor is fact specific (In re O Brien v. Spilzer, 7 N.Y.3d 239, 242 [2006]), and cannot be stated with mathernatical precision[.] Liberrnan v. Gallman, 4 1 N.Y.2d 774,778 (1 977) (internal quotes and citations omitted). Broadly speaking, an employee is someone who works Tor another subjcct to substantial control, not only ovcr the results produccd but also over the incans used to producc the rcsults. A person who works for another subject to less extcnsive control is an independent contractor. O Rrien, 7 N.Y.3d at 242. The Court of Appeals has sct forth: the critical inquiry in determining whether an cinployiient relationship exists pertains to the degree of control exercised by the purportcd employer over the rcsults produced or thc means used to achieve the rcsults. Factors relevant to assessing control include whether the workcr ( I ) worked at his own convenience, (2) was free to engage in other cmploytnent, (3) reccived fringe benefits, (4) was on the employcr s payroll and ( 5 ) was on a fixed schedulc. H y ~ i o g Cipriani Group, Inc., 1 N.Y.3d 193, 198 (2003) (internal citations omitted). Other factors v. takcn into consideration are whether thc worker uses his own tools, the Inanncr in which wages arc paid, and whether the cinployer withholds taxes from the worker s wages. Gfcller v. Russo, 45 A.D.3d 1301, 1302 (4th Dcp t 2007); Stevens v . Spec Inc., 224 A.D.2d 81 1,812 (3d Dep t 1996). These factors are not singularly dispositive, but rather relevant to assessing the extcnt of control over thc worker. See Gagen v. Kipany Prods., Ltd., 27 A.D.3d 1042, 1043 (3d Dep t 2006). An employer-employee relationship exists when the evidencc demonstrates that thc cinployer exercises control over the results produced by claimant or the means used to achieve the results. In re Hcrtz Corp. v. Coinin r of Labor, 2 N.Y.3d 733, 735 (2004) (citation omitted). Thc distinction bctwcen an etnployce and an independent contractor has been said to bc the differencc bctween one who undertakcs to - 1 1- [* 13] achieve an ageed result and to accept the directions ofhis employer as to the manncr in which the result shall be accomplished, and one who agrees to achieve a certain result but is not subject to the orders o f the employer as to the means which are used. Liberman,41 N.Y.2d at778, quotingln reMorton, 284N.Y. 167,172 (1940). [Tlhemereretention of general supervisory powers over independent contractors cannot form a basis for the imposition ofliability against the principal. Melbourne v. N.Y. Life. Ins. Co., 271 A.D.2d 296,297 (1st Dcp l 2000) (citations omitted). The requirement that thc work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to eithcr. Hertz Cow., 2 N.Y.3d at 735 (2004) quoting CBA Indus. v. IIudacs (In re Claim of Werner), 210 A.D.2d 526,528 (3d Dep t I994), appeal denied, 86 N.Y.2d 702 (1995). Rather, whenan cmp1oyer assiiines control of the details of the work or somc part ofit, the worker is considered an employee and not an indcpeiident contractor. Wright v. Esplanadc Gardens, I50 A.D.2d 197, 198 ( I st Dep t 1089). The focus of this determination is control over the direction ofthe inode and iiianner of the work, Though Carni P.C. established its entitlement to summary judgment, plaintiff has raised sufficient issues of fact as to precludc granting Carni P.C. sumniaryjudgincnt on the issue of its liability Tor the acts or omissions of Dr. Goldweber. Issues of fact exist as to whether Carni P.C. assumed control over the details of Dr. Goldwebcr s work, namely, Dr. Goldweber s technique in adrninistering anesthesia and thc supplies he used to implement that tcchniquc. It was Cami P.C. who purchased and supplied Dr. Goldwebcr with the multi-dose vials. Though Carni P.C. argues that Dr. Goldweber could administer anesthesia in any way he chose, and that he chose the path of -12- [* 14] last [sic] resistance by ciiiploying the system alrcady in place, the crcdibilily ofthat assertion is best left to the trier of fact. Additionally, a review of the record indicatcs that other factors point to an ernployriicnt rclationship, including that Dr. Goldwebcr appears to have worked full-time and only for Carni P.C.; did no1 control the billing or where and whcn he worked; was not paid per case; rcccived paid vacation and bonuses; was not required to pay for his supplies; and was rcquired to use charts and anesthesia records provided by Carni, P.C. Further, Dr. Carni required Dr. Goldweber to provide, in his prescnce, anesthesia to numerous patients beforc he retained Dr. Goldweber, which suggests that Dr. Carni wanted to observe whcther Dr. Goldwebcr s methodology was to his liking. If it was not, Dr. Carni would not necessarily havc declined to retain Dr. Goldweber, but instead could have dictatcd how he wantcd the work performed. In light of the foregoing conflicting cvideiice, Carni P.C. s application to dismiss the claiiiis against it sounding in vicarious liability is denicd. The Goldberg Dcfendants arguc that they cannot be held vicariously liable for Dr. Goldweber s malpractice becausc he was neithcr their einployec nor their indepcndcnt contractor. They asscrt that Dr. Goldberg is not an anesthesiologist; that they ncithcr supervised nor directed Dr. Goldwebcr s professional activities; and that Dr. Goldberg never administered propofol himself. The Cioldbcrg Defendants assert that Dr. Cami represcnted to Dr. Goldberg that Dr. Goldweber was qualified and capable, and that they rclied on Dr. Canii to supervise the anesthcsiologists who provided care to patients of Goldberg P.C. -13- [* 15] Plaintiff asserts that issues of fact exist with respect to whether the Goldberg Dcfendan ts arc vicariously liable for Dr. Goldwcber s negligence. Plainti ffargues that the Goldberg Dcfendants failed to cite any case law to support their position that they are not vicariously liable for Dr. Goldweber and that they failed to address the issue of apparent authority or ostensible agency; thus, plaintiff argues, the Goldberg Defendants failcd to establish a prima facie casc for summary judgment. Plaintiff argues that in this case, the Goldberg Defendants did more than simply fiirnish the facility to Mr. Grcer, but acliially arranged for and provided anesthesia services to him during his colonoscopy. Plaintiff submits his own affirmation in which he states that he assumed that Dr. Goldweber was Dr. Goldberg s employee based on Dr. Goldberg s representation that the colonoscopy could be perfonnecl in Dr. Goldberg s office, because such procedures typically entail the administration of anesthesia. He maintains that he was not given a choice as to who would be his aneslhesiologisl. Thus, plaintirf argues that the Goldberg Defendants should not be granted sumniary judgment with respect to the causes of action sounding in niedical malpractice and negligence, Thcre remains open issues of fact as to whcther Dr. Goldweber was acting as the Goldweber Defendants npparcnt agcnt, Mr. Greer did not choose Dr. Goldweber to perform the anesthesia and only interacted with Dr. Coldwebcr for the anesthesia portion ofthe procedure. The Goldberg Defendan ts failed to address the issues regarding ostensiblc or apparent agency, and thus failed to eliminate all issues of fact as to the claims sounding in vicarious liability. Accordingly, the branch of Goldberg Defendants motion seeking to dismiss the vicarious liability claim is denied. -14- [* 16] The Carni Defendants argue that the claims sounding in negligcnt hiring, retcntion, and supervision2 inusl be dismissed becausc there is no cvidence that they could have reasonably known that Dr. Goldwcher had a propensity to break sterile technique. The Carni Dcfendants cxpert, Alan Pollock, M.D., opines that the mere uso of a multi-dose vial ofpropofol is an acceptable lechniquc, provided that the anesthcsiologist does not reinscrt a previously-used syringe or needlc into the vial. In opposition, plaintiff argues that the Carni Defcndants breached the most minimal duty of care with respect to retaining Dr. Goldwebcr because they never contacted his professional refcrences, rclicd exclusively on his curriculum vitae ( CV ), and failed to investlgatc a gap in his CV. Plaintiff allcges that had the Carni Defendants properly investigatcd Dr. Goldweber s work history, h e y would have fbund out that Dr. Goldwcber was unqualified to adrninistcr anesthesia. Plaintiffargues that since the 1999 OPMC findings are publicly available, the Carni Defendants were on constructive noticc of Dr. Goldweber s propensity for unsafe medical praclices. He maintains that Dr. Carni personally witnessed Dr. Goldweber s propensity when he obscrved Dr. Goldweber utilizc a multi-use vial of propofol to dose more than one patient. Plaintiff argues that the Carni The courl notes that while plaintiff s pleadings raise claiins against the Carni and Goldberg Defendants sounding in negligcnt hiring, negligent supervision, and negligent retention, neither defendants nor plaintiff argued any distinction between negligent supervision and ncgligent rctention. The partics arguinents focus on whether defendants knew or should have known of Dr. Goldweber s propensity for thc conduct that caused the injury. There arc no arguments from cither side focusing on whethcr the moving defendants brcached a duty to instruct, train, educate, or supervise Dr. Goldwebcr in the context o f a claim for negligent supervision. Accordingly, the cowl will consider the argwnents only as they pertain to negligent hiring and negligent retcntion. To the cxtent thal plaintiff assertcd a claim for negligent supcrvision, hc has not parlicularized that such a claim exists outside the context of his claim for negligent retcntion. -15- [* 17] Defendants negligcntly continued to retain Dr. Goldweber by failing to make inquirics and ensure that he was up-to-datc on his infection control certificates and incdical malpractice insurance, both of which Dr. Goldweber allowed to lapse after he was hired. A defendant moving for summary judgmcnt on claims sounding in negligent hiring or retention must dcmonstrate with sufficient evidence that the defendant neither kncw nor should havc known of the contraclor s propensity to engage in the conduct that caused the injury. Slate P a m Ins. Co. v. Cent. Parking Sys., Inc., I8 A.D.3d 859, 860 (2d Dep t 2005). If the defendant meets this burden, in order to raisc an issue of fact, the plaintiff must offer evidence showing that the employer-defendant was awarc of an independcnt contractor s prior conduct that was cithcr identical to thc conduct that ultiinatcly caused the plaintifrinjury or of a slightly different naturc that neverthcless made the plaintiff-s ultimate injury foreseeable. See T.W. v. City of New York, 286 A.D.2d 243,245-46 (1st Dcp t 2001); Colon v. Jarvis, 292 A.D.2d 559, 561 (2d Dep t 2002). cf. Rochlin v. Alarno, 209 A.D.2d 499,500 (2d Dep t 1994) (plaintiff whose vchicle was struck in thc rear by a vchicle driven and stolen by defendant s employee could not make a ncgligent hiring claim without proof that defendant was aware of employee s propensity to steal). Contrary to plaintiff s conlentions, cvcn if Dr. Carni had checked Dr. Goldweber s references, had investigated the gap betwcen his employment at Rochcster General Hospital and at Lakeside Memorial Hospital, or had discovercd whether hc had ever becn sanctioned, thesc investigations would not have given Dr. Carni actual or constructive notice of the injurious conduct, or have revealcd that Dr. Goldweber had a propensity for breaking sterile technique and infecting -16- [* 18] patients with infcctious diseases. Additionally, Dr. Carni has prima facie demonstrated that it was appropriate to w e a multi-dose vial ofpropofol onmore than onc patient, as long as sterile technique was maintained, and plaintiffhas not shown that the mere use of multi-dose vials on more than onc patient is de facto ncgligcnce. Dr. Canii had no knowledge simply from observing Dr. Goldweber, prior to his rctcntion, o r his propensity to break sterile technique, because Dr. Carni did not witness any acls or omissions ofDr. Goldweber that amounted to a break in stcrilc technique. Accordingly, thc claims against the Carni Derendants h r negligent hiring must be dismissed. However, there is one unresolved issue related to ncgligcnt retention: that the Canii Defendants wcrc negligent in failing to take steps to ensure that Dr. Goldweber kept his requisite infection control ccrtification up-to-date. Presumably, this requiremciit for rcccrtification every four ycars, which is imposed on all physicians, scrves some purpose, whether to reeducate a physician who has forgotten something or to reinforcc the importance of using proper sterile techniques. It cannot bc dctennined as a matter of law that the lack of recertification had no bearing on the outcome in this casc.j [Tlhe remedy of surnrnary judgment is a drastic one, which should not be gantcd where there is any doubt as to thc existence of a triable issue or whcrc thc issuc is cvcn arguablc, since i t serves to deprive a party of his day in court. Gibson v. Am. Exp. Isbrandtscn Lincs 125 A.D.2d 65, 74 (1st Dcp t 1987) (internal citations omitted). Accordingly, the court -7 declines to dismiss the negligent retention claims against the Carni Defendants. 3 Indecd, OPMC s report indicates that Dr. Goldweber expressed surprise when informed that contaminants could llow back through a paticnt s inlravenous line into a synngc. -17- [* 19] The Goldberg Defendants argue that they are entitlcd to summary judgment as to plaintiff-s claiiiis against lhern sounding in negligent hiring and retention. They assert that a c h i n for negligent hiring or retention cannot be successfully asscrtcd against lhern because they neither cmploycd Dr. Goldweber nor retained him as an independent contractor. Rather, they contracted with the Carni Defendants for anesthesia services, and relied upon Dr. Carni and the Carni Defendants cxpcrtisc in and familiarity with anesthesiology to dctcrniinc Dr. Goldweber s qualifications and abilitics. Furthcr, thc Goldberg Defendants maintain that Dr. Goldberg had no noticc of any problems with Dr. Goldweber s qualifications or had any reason to believe that Dr. Goldwcbcr had a propensity to transmit infectious discascs. Plaintiff asserts that issues of fact cxist with respect to whether the Goldberg Defendants may be hcld liable for negligent hiring and retention. Plaintiff maintains that the Goldberg Defendants breachcd thcir duty of care with respect to selecting Dr. Goldweber to render aiieslhesia services to Dr. Goldberg s patients by failing to conduct any independent research into Dr. Coldweber s work history, compctency, qualifications, or malpractice coverage, and f2iiling to ask Dr. Carni whether Dr. Goldweber had ever been disciplined. Plaintiff alleges that but for thc Goldbcrg Defendants negligcncc, thcy would have discovered that Dr. Goldweber s history involved patterns of negligencc in the manner in which he administered anesthesia. Plaintiff also makes similar arguiiients as to thc Goldbcrg Defendants as it did rcgarding the Carni Defendants with respect to the 1999 OPMC findings and the lapscs in Dr. Goldweber s rnalpracticc insurance in infection control certi tication. -18- [* 20] The Goldberg Derendants had no knowledge of the prior disciplinary proceedings, and cven if they had, the records pertaining lo those proceedings would not have shown that Dr. Goldwcbcr had the propensity to break sterile technique. Dr. Goldberg s testimony that he was unawarc of Goldwcber s anesthesia technique and did not watch him perform his services is not disputed. Morcovcr, thc Goldbcrg Dcfcndaiits were entitled to delegate the hiring services and the scrvice or ensuring that Dr. Goldweber s credentials were kept up-to-date by thc Carni Dcfcndants. -Sandra M. v. St. Luke s Roosevelt Hosp. Ctr., 33 A.D.3d 875, 880 (2d Dep t 2006) (service of Cf. supplying staff to hospital is not so integral to hospital s main job of providing health care that hospital is barrcd from delegaling that ancillary service, as well as the liability for doing so negligently, to an indcpcndent contractor). Accordingly, the negligent hiring and retention claims asserted against the Goldberg Defendants shall bc dismisscd. The Carni and Goldberg Dcfcndants also seek surnrnary judgment dismissal of plaintiffs claims Tor punitive damages on thc basis that such damages are not warranted under the circurnstanccs of thc case. However, the Carni Defendants failed to make any arguments or cite any casc law in support ofthcir position in their moving papers or their inemorandum of law; thus, they havc failed l o make out a prima facic case in support of their position. As to the Goldberg Defcndants, they maintain that thc conduct alleged against them docs not rise to the level of warranting punitivc damages, as there is no proof of the existence of an evil motive or any willful or intcntional misdoing, Thcy furthcr iiiaintain that the deterrent intcnt of puiiilive damages is not applicablc hcre, where the wrongdoer is no longer in the case. Finally, thc Goldberg Defendants assert that punitive damages cannot bc assessed for vicarious liability under these circumstances. -19- [* 21] Punitive damages are not intendcd to cornpcnsate a plaintiff, but instead scrve to punish thc wrongdocr and detcr that individual and those in siiiiilar situations from cngaging in the samc behavior in the future. Ross v. Louise Wise Sews., Inc., 8 N.Y.3d 478,489 (2007). More than mere ncgligencc or carelessness is required to pcnnit a punitive damages claim. See Fordham- Colcman v. Nat l Fuel Gas Distrib. Corp., 42 A.D.3d 106, I 13 (4th Dep t 2007); Rey v. Park View Nursing Home, 262 A.D.2d 624, 627 (2d Dep t 1999); Grubcr v. Craig, 208 A.D.2d 900, 901 (2d Dcp t 1994). To justify the imposition ofpuni live damages, thc conduct must be cxceptional, as when the wrongdoer has actcd maliciously, wantonly, or with a rccklessness that betokens an improper motive o r vindictivcncss . . , or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safcty or rights. Ross, 8 N.Y.3d at 489, quoting Sharapata v. Town of Islip, 56 N.Y.2d 332,335 (1982). A conscious or reckless disregard of another s rights is necessary. Homc Ins. Co. v. Am. IIome Prods. Corp., 75 N.Y.2d 196, 203 (1990); Welch v. Mr. Christmas, Inc., 57 N.Y.2d 143, 150 ( I 982). In a malpractice action, punitive damages are not recoverable unless the conduct is wantonly dishonest, grossly indifferent to patient carc, or malicious andor rcckless. Schiffer v. Speaker, 36 A.D.3d 520, 521 (1st Dep t 2007) (citations omitted). A principal can be liable for punitive damages as a result of an ciiiployee or agent s reckless conduct whcre the principal orders, participatcs in, or ratifies outrageous conduct. Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378 (1986) (citations ornittcd). The Goldberg Defendants havc established that they are entitled to summary judgment on thc issue of punitive damages. In opposition to thc Goldberg Defendants arguments, -20- [* 22] plaintiff does not disputc that punitivc daniagcs cannot be assessed on his claims against the Goldberg Defendants for vicarious liability for the acts or omissions of Dr. Goldweber. It is also undispulcd that the Goldberg Defendants did not witness Dr. Goldwcber brcaking stcrilc tcchnique; thus, they did not ratify Dr. Goldweber s behavior as to be placed on the requisite notice. Plaintiff does arguc, howcvcr, that the Goldberg Derendants can be assessed punitive damages on claims of iicgligenl hiring and retention. Recause this decision disnlisscs plaintifr s negligent hiring and rctcntion c l a i m against the Goldberg Defendants, they are entitlcd to dismissal of the claims Tor punitivc damagc premised on the claims ornegligent hiring or retention. Regardlcss, thc court points out that failing to invcstigate Dr. Goldweber s disciplinary history, failing to propcrly supcrvisc Dr. Goldweber, and bcing aware of Dr. Goldweber s use of multi-dose vials arc not allegatioiis that amount to willful bchavior on the part of the Goldberg Defendants. Accordingly, it is hereby ORDEKl3l that the motion (Motion Scqucnce Number 002) of defendants Abbe J. Canii, M.D. and Abbe J. Carni, M.D., P.C. seeking summaryjudgiiicnt is partially ganled, lo lhe extent thal the claim against Abbe J. Carni, M.D., sounding in vicarious liability for Brian Goldwcbcr, M. D. s negligence or medical malpractice, is dismissed; the claim against Abbc J. Uarni, M.D. aiid Abbe .I.Carni, M.D., P.C. sounding in lack or informed consent is dismisscd; and thc claim against Abbc J. Canii, M.D. and Abbe J. Carni, M.D., P.C. sounding in negligent hiring is dismisscd; and i t is further -2 I - __ [* 23] ;I 1 0:3 0 . - . .. -. .- . . .. . . . .. a. 111. MAR 20 2012 NEW YORK

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