Lucia v Goldweber

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Lucia v Goldweber 2012 NY Slip Op 31470(U) June 1, 2012 Sup Ct, New York County Docket Number: 104882/08 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 61512012 [* 1] c SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Ladas PRESENT: PART Justice 6 INDEX NO. MOTION DATE .v. MOTION CAL. NO. 67 4 c The followlng papers, numbered 1 to Notlce of Motion/ Order to Show Cause Answerlng Affidavits - - Affidavlts - Exhlbits ... 25 Exhlblts Replylng Affidsvlts Cross-Motion: No @Yes I Upon the foregolng popers, It la ordered that thlr mo I JUN 0 5 2OQ ! NEW YORK COUNW CLERICS 0 - THIS MOTION IS DEClDED*IN ACCORDANCE WITH THE ACCOMPANYING MEMORANDUM DECISION Dated: (7 $ Check one: / /2-- -pa!%- FINAL DISPOSITION Check if appropriate: NON-FINAL DISPOSITION a DO NOT POST SUBMIT ORDER/ JUDG. J.s c. . c REFERENCE ] [7 SETTLE ORDER/ JUDG. [* 2] Plaintiff, Index No. 104882/08 Decigion and Order -against- BRIAN A. GOLDWEBER, M.D., BRIAN A. GOLDWEBER, M.D., L.L.C., EDWARD S . GOLDBERG, M.D., EDWARD S. GOLDBERG, M.D., P.C., ABBE J. CARNI, M.D., and ABBE J. CARNI, M.D., P.C., Defendants. leave to reargue that branch of their prior motion (Motion Sequence Number 001) which sought summaryjudgment dismissal of plaintiffs causes of action souhding in negligent hiring, supervision, and retention against the Carni Defendants, and which was denied in this court s decision and order dated December 15, 201 1 (the December 201 1 Decision ), and upon reargument, granting the aforesaid branch of the Carni Defendants motion and dismissing plaintiffs causes of action sounding in negligent hiring, supervision, and retention against the Carni Defendants. Defendants Edward S. Goldberg, M.D., and Edward S . Goldberg, M.D., P.C. (the Goldberg Defendants ), cross-move for an order granting them leave to reargue that branch of their prior motion (Motion Sequence Number 002) which sought summary judgment dismissal of plaintiffs causes of action sounding in negligence against the Goldberg Defendants, which was denied in the December 201 1 Decision, and upon reargument, granting the aforesaid branch ofthe Goldberg Defendants motion and dismissing plaintiffs causes of action sounding in negligence against the Goldberg Defendants. [* 3] The Goldberg Defendants motion is denied, as their motion is not based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. C.P.L.R. Rule 222 1(d). The Carni Defendants motion for leave to reargue is granted. In the underlying decision, the court declined to dismiss the negligent hiring, supervision, and retention claims against the Carni Defendants on the grounds that an issue of fact existed a to whether the Carni Defendants knowledge that co-defendant anesthesiologist Brian A. Goldweber, M.D., used multi-dose vials of propofol on more than one patient amounted to knowledge that Dr. Goldweber would break sterile technique and on the grounds that the Carni Defendants failed to address their alleged negligence in failing to take steps to ensure that Dr. Goldweber kept current his infection control certification. The court now sets forth that it misapprehended the facts and law with respect to the standard in this case for establishing a prima f&g entitlement to summary judgment on the claims for negligent hiring, supervision, and retention, and therefore grants leave to reargue the underlying motion papers dealing with that branch of the Cami Defendants motion seeking summary judgment on plaintiff s claims for negligent hiring, supervision, and retention. The key issue with respect to the claims for negligent hiring, supervision, and retention is whether the Carni Defendants knew or should have known that Dr. Goldweber had a propensity to break sterile technique. Assuming that plaintiff contracted hepatitis due to Dr. Goldweber s negligent administration of anesthesia-which is plaintiffs theory of the case-the negligence alleged is that Dr. Goldweber would reuse syringes when using multi-dose vials of I -2- [* 4] propofol, and would then dose subsequent patients out of the same vials, thereby exposing the subsequent patients to hepatitis that the source patient had. In the underlying motion, the Carni I Defendants presented expert opinion testimony from Alan Pollock, M.D., that re-using a multi-dose I vial of propofol is not negligent as long as a new syringe is used each time, or in other words, as long as sterile technique is maintained. Dr. Pollock further opined that there was no evidence that, prior to hiring Dr. Goldweber or during his contract, Dr. Carni Wew or should have known that Dr. Goldweber was not taking the necessary, universal precautions for maintaining sterile technique. This was sufficient to establish a a& entitlement to summary judgment with respect to plaintiffs claims sounding in negligent hiring, retention, and supervision. In opposition, plaintiffs expert Jack Rubenstein, M.D., opined that Dr, Carni should not have hired Dr. Goldweber based on the facts that gave rise to his previously-suspended medical license and his lies regarding such, but his opinion that, [tlaken as a whole the past incidents clearly indicate . . . improper infection control technique[,] was conclusory and belied by the facts, Additionally, while plaintiffs other expert, Edward Weissman, M.D., opined that Dr. Goldweber failed use the propofol as directed because he administered anesthesia to more than one patient with propofol from the same vial, Dr. Weissman was not of the opinion that use of a rnulti-dose vial of prbpofol itself constituted negligence. Moreover, plaintiff provided no expert testimony that Dr. Goldweber s failure to kept current his infection control certification proximately caused plaintiffs injury. Accordingly, upon reargument, the court finds that plaintiff did not sufficiently rebut the Carni Defendants e n & h showing that they had no reason to know that Dr. Goldweber would break sterile technique, which is the conduct that caused injury to plaintiff, Plaintiff failed to offer evidence showing that the Carni Defendants were aware of conduct of Dr. Goldweber that was either identical to the conduct that ultimately -3- I I [* 5] .- caused plaintiffs injury or of a slightly different nature that nevertheless made plaintiff s ultimate , injury foreseeable. Since there is no dispute that use of a;multi-dose vial of propofol is not negligent, such use cannot constitute conduct so similar to breaking sterile technique that it could havc made plaintiff s ultimate injury foreseeable. ! Rochlin v. Alanno, 209 A.D.2d 499,500 (2d & Dep t 1994) Cplaintiff whose vehicle was struck in the re& by a vehicle driven and stolen by defendant s employee could not make a negligent hiring claim without proof that defendant was aware of employee s propensity to steal). a T.W, v, City ofNcw York, 286 A.D.2d 243,245-46 (1 st Dep t 2001); Colon v. J w i s , 292 A.D.2d 559,561 (2d Dep t 2002). Thus, the Cami Defendants were entitled to summary judgment on the claims for negligent hiring and retention. Accordingly, l it is hereby I ORDERED that the motion of defendants Abbe J. Carni, M.D., and Abbe J. Carni, I M.D., P.C., leave to reargue that branch of their prior motion (Motion Sequence Number 001) for seeking summary judgment as to the merits of plaintiffs causes of action sounding in negligent ~ hiring and negligent supervisiodretention is granted; and it is further The court notes that while plaintiff s pleadings raised claims against the Carni Defendants sounding in negligent hiring, negligent supervision, and negligent retention, neither defendants nor plaintiff argued any distinction between negligent supervision and negligent retention in their underlying motion papers. The parties arguments focused on whether the C r i Defendants knew an or should have known of Dr. Goldweber s propensity for the conduct that caused the injury. There were no arguments from either side focusing on whether the tnoving defendants breached a duty to instruct, train, educate, or supervise Dr. Goldweber in the context of a separate claim for negligent supervision. To the extent that plaintiff asserted a claim for negligent supervision, he never particularized that such a claim existed outside the context of her claim for negligent retention. -4- I [* 6] ORDERED that, upon reargument, the Court vacates that portion of its prior order dated December 15,20 1 1, denying that branch of Motion Sequence Number 00 1 seeking summary judgment in favor of defendants Abbe J. Carni, M.D., and Abbe J. Carni, M.D., P.C., respect with to the merits of plaintiffs causes of action sounding in negligent hiring and negligent supervisionhetention, and hereby grants that branch of the summary judgment motion of Abbe J. Carni, M.D., and Abbe J. Carni, M.D., P.C., to said causes of action; and it is hrther as ORDERED that plaintiffs causes of action sounding in negligent hiring and negligent supervisionhetention are dismissed as to defendants Abbe J. Carni, M.D., and Abbe J. Carni, M.D., P.C.; and it is further ORDERED that the cross motion of defendants Edward S. Goldberg, M.D., and Edward S. Goldberg, M.D., P.C., is denied; and it is further 2012, at 11:00 a.m. Dated: June I ,2012 * JOAN -5- . LOBIS, J.S.C.

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