Davis v South Nassau Communities Hosp.

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Davis v South Nassau Communities Hosp. 2012 NY Slip Op 31969(U) July 10, 2012 Supreme Court, Nassau County Docket Number: 1834/11 Judge: Denise L. Sher 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. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice EDWIN DA VIS and DIANNA DAVIS Plaintiffs - against SOUTH NASSAU COMMUNITIES HOSPITAL REGINA E. HAMMOCK , DO , CHRISTINE DeLUCA , RP A- C and ISLAND MEDICAL PHYSICIANS , P. TRIAL/IAS PART. NASSAU COUNTY Index No. : 1834/11 Motion Seq. Nos. : 01 Motion Dates: 02/14/12 02/14/12 03/13/12 Defendants. The followini: papers have been read on these motions: Papers Numbered Notice of Motion . No. 01 Affirmation and Exhibits Notice of Cross- Motion . No. 02 Affirmation and Exhibits Affirmation in O osition to Motion Se . No. 01 and Se . No. 02 Notice of Cross- Motion . No. 03 Affirmation and Exhibits Affrmation in O osition to Cross- Motion Se . No. 03 Affirmation in O osition to Cross- Motion Se . No. 03 Replv Affirmation Upon the foregoing papers , it is ordered that the motions are decided as follows: Defendants Regina E. Hammock , DO (" Hamock" ), Christine DeLuca , P A slhal Christine DeLuca, RP A- C (" DeLuca ) and Island Medical Physicians , P . C. (" Island" ) move (Seq. No. 01), pursuant to CPLR 9 3211(a)(7), for an order dismissing plaintiffs ' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action. Plaintiffs [* 2] oppose the motion. Defendant South Nassau Communities Hospital (" South Nassau ) cross-moves (Seq. No. 02), pursuant to CPLR 9 3211(a)(7), for an order dismissing plaintiffs ' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action. Plaintiffs oppose the motion. Plaintiffs cross-move (Seq. No. 03), pursuant to CPLR 99 601 consolidating the instat action , 602 and 1002 , for an order Action #3 , with Action #1 , filed by plaintiffs against Lorraine Walsh under Index No. 8405/09 , and with the two actions fied by Lorraine Walsh , consolidated under Index No. 23966/09; and cross-move , pursuant to CPLR 9 3025(b) for an order granting them leave to serve an amended complaint nunc pro tunc against the defendants in the instant action adding a cause of action for negligence. Defendants oppose the motion. This action arises from medical care provided to non-par Lorraine A. Walsh at the emergency deparment of defendant South Nassau on March 4 2009. Shortly after her discharge from the emergency deparment , after being treated with what plaintiffs characterize as potent narcotic medications , Ms. Walsh was involved in a motor vehicle accident with plaintiff Edwin Davis who was severely injured when the school bus he was operating was demolished in a headon collsion with the Walsh vehicle. Plaintiffs allege that , immediately prior to the accident, Ms. Walsh was treated at defendant South Nassau s emergency room by defendants Hammock and DeLuca who Action #1 was commenced by plaintiff against Lorraine A. Walsh , under Index No. 8405/09 , on or about May 2009. On or about November 16 2009 , Lorraine Walsh- Roman commenced an action against Regina E. Hamock, M. , Robert Dean, M. , Christine DeLuca , and South Nassau Communities Hospital under Index No. 23966/09. A separate action commenced by Lorraine Walsh- Roman against Island Medical Physicians in or about Februar 2011 , under Index No. 2540/11 , was consolidated with the prior Walsh- Roman-action under Index No. 23966/09 by Order ofthe Hon. Steven M. Jaeger dated June 29 , 2011. [* 3] administered Toradel30 mg IV , Dilaudid . 5mg IV and Ativan 15mg IV to the patient. According to plaintiffs , the emergency room record indicates that Ms. Walsh was given no warings about operating a motor vehicle prior to her discharge. Nineteen minutes after her discharge from defendant South Nassau , Ms. Walsh , while allegedly cognitively impaired , drove her 2003 Ford automobile across the double yellow lines of West Merrick Road into the opposite lane of traffic and collded head on with the school bus operated by plaintiff Edwin Davis. Plaintiffs allege that they were injured due to the malpractice of defendants in releasing Ms. Walsh from the emergency room of defendant South Nassau in an impaired and diminished cognitive and physical state caused by defendants ' treatment , without allowing or permitting the effects of the medications administered to abate and without instructing the patient on the dangers of operating an automobile and/or without aranging a safe method oftransporttion for her. Plaintiffs argue that "no person given the medications that Ms. Walsh was administered can be allowed to blindly have her keys , get into a motor vehicle and operate same on a public roadway. In the related consolidated action commenced by Lorraine Walsh against defendants herein , bearing Index No. 03966/09 (Action #2), Ms. Walsh alleges that defendants committed medical malpractice by 1) releasing her from defendant South Nassau in an impaired and drugged state; 2) failing to war her of the driving related effects of the medication that had been administered to her and the foreseeable risks of operating a vehicle under the influence of said medications; and 3) failing to evaluate her ability to drive afer she had received potent narcotic medications. Defendants seek dismissal of the Verified Complaint , pursuant to CPLR 3211(a)(7) [* 4] predicated on the grounds that , in the absence of a physicianpatient relationship between plaintiffs and defendants , a cause of action for medical malpractice canot be sustained. Moreover , in the absence of any duty owed by defendants to plaintiffs , a claim for negligent hiring against defendant Island 2 is not viable. In assessing the adequacy of a complaint in light of a CPLR ~ 321 1 (a)(7) motion to dismiss , the court must afford the pleadings a liberal construction , accept allegations as true and See Landon provide plaintiff with the benefit of every possible favorable inference. Specialists, Inc. v. Kroll Lab. 91 AD. 3d 79 934 N. Y.S.2d 183 (2d Dept. 2011). In opposition to defendants ' motion and cross-motion to dismiss the Verified Complaint plaintiffs argue that a physician s duty of care is extended to third paries where the physician services il!plicate the protection of identified persons foreseeably at risk. Labs. , Div. of Am. Cyanamid Co. 90 N. Y.2d 606 , 665 N. Y.S.2d See Tenuto v. Lederle 17 (1997). Inasmuch as defendants allegedly transformed Ms. Walsh, the offending tortfeasor , into a cognitively and physically impaired individual and rel ased her from defendant South Nassau without warning her of the driving related effects of the medication administered to her , plaintiffs argue that defendants breached a duty owed to the driving public. In short , plaintiffs contend that defendants are liable for the accident because they discharged Lorraine Walsh from defendant South Nassau in an impaired/diminished cognitive condition and failed to war her of the hazards of driving in such condition. Plaintiffs assert that a physician who administers or prescribes an intoxicating drug to a patient and is aware of its effects has a duty to the traveling public to war the patient not to Defendants DeLuca and Hamock were employed by defendant Island on the date in question. [* 5] drive while under the influence of the drug and not to discharge the patient without properly evaluating her ability to drive. Under the circumstances of this case , the absence of a doctor/patient relationship between sine qua plaintiffs and defendants precludes a cause of action based on medical malpractice. The non of a medical malpractice claim is the existence of a doctor/patient relationship. It is this relationship which gives rise to the duty imposed on a doctor to properly treat his or her patient. In the absence of a doctor/patient relationship, plaintiffs ' claim against defendants sounding in medical malpractice is legally insufficient. v. See Fox Marshall 88 AD. 3d 131 928 N. Y.S.2d 317 (2d Dept. 2011). Plaintiffs have cross-moved to amend the Verified Complaint to add a cause of action sounding in common law/simple negligef!ce. The critical factor in distinguishing whether conduct may be deemed malpractice or negligence is the nature of the duty owed to plaintiff that the defendant is alleged to have breached. denied See Spiegel v. Goldfarb 66 AD. 3d 873 889 N. Y.S. 2d 45 (2d Dept. 2009) Iv to appeal 15 N. Y.3d 711 910 N. Y.S. 2d 36 (2010). A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes medical malpractice. See Dupree Giugliano 87 AD. 3d 975 929 N. Y.S.2d 305 (2d Dept. 2011). Where the gravamen of a complaint is not in negligence in fushing medical treatment to a patient but in failing to fulfill a different duty, the claim sounds in negligence. See Weiner v. Lenox Hil Hosp. 88 N. Y.2d 784 650 N. Y.S. 2d 629 (1996). As an initial matter , the Court notes that leave to amend a pleading should be freely given absent prejudice or surrise resulting from the delay. See CPLR ~ 3025(b). While the decision to [* 6] grant or deny the requested relief is left to the sound discretion of the cour (see Gitlin Chirinkin 60 AD.3d 901 , 875 N. Y.S.2d 585 (2d Dept. 2009)), the relief need not be granted where the proposed amendment is palpably lacking in merit. See Jenal v. Brown 80 AD.3d 727 2d 780 (2d Dept. 2011). In considering a motion for leave to amend , it is incumbent 916 N. on the cour to examine the sufficiency and merits of the proposed amendment. See Moyse Wagner 66 AD. 3d 976 888 N. Y.S. 2d 148 (2d Dept. 2009). To sustain a cause of action alleging negligence , a plaintiff must demonstrate the existence of a duty, a breach of that duty and that the breach of such duty was a proximate cause of plaintiffs injuries. See Mojica v. Gannett Co. , Inc. 71 ADJd 963 Dept. 20 I 0). Absent a duty of care , there is no breach and no liability. 69 AD. 3d 837 894 N. 2d 212 (2d 897 N. See Schindler v. Ahearn S.2d 462 (2d Dept. 2010). The threshold question in tort cases in determining liabilty is , therefore , whether the alleged tortfeasor owed a duty of care to the injured par. 98 N. Y.2d 136 , v. Melvile Snow Contrs. 746 N. Y.S.2d 120 (2002). That question is a legal one for the cour to resolve. Foreseeabilty of injur does not determine the existence 65 N. Y.2d 399 , 492 N. Y.S.2d to " See Espinal of duty. 555 (1985). Questions about See Strauss v. Belle Realty Co. legal duty are resolved by resorting concepts of morality, logic and consideration of the social consequences of imposing the duty. See Tenuto v. Lederle Laboratories, supra at 612. Assuming for present puroses that the allegations of the Verified Complaint are true and defendants should have advised Lorraine Walsh not to drive immediately upon her discharge from the hospital , not all mistakes result in liabilty (emphasis added). The crucial issue is whether the defendants owed plaintiffs a duty of care. Here , in the absence of a physicianpatient relationship between plaintiffs and defendant health care providers , plaintiffs propose an [* 7] expansion of the concept of the duty owed by a physician arising from the physicianpatient relationship to encompass a new category which is the protection of third paries. With respect to the proposed negligence claims , plaintiffs argue that Ms. Walsh' operation of an automobile while impaired presented a foreseeable risk of har to travelers on the road. For the most par , there is no duty in tort law to control the conduct of a third person so as to prevent them from causing physical har to another even where , as practical matter , the defendant could have exercised such control. See Citera County of Suffolk 95 AD. 3d v. 1255 945 N. Y.S. 2d 375 (2d Dept. 2012). As a general matter , a doctor only owes a duty of care to his or her patients. Cours have been reluctant to expand the duty owed by a doctor to his or her patient to encompass nonpatients. To do so wou d render doctors potentially liable to a prohibitive member of possible plaintiffs. See McNulty v. City of New York 100 N. Y.2d 227 , 762 N. S.2d 12 (2003). A doctor s duty can , however, in limited circumstances , encompass non-patients who have a special relationship with either the physician or patient. See Klein v. Bialer 72 AD. 3d 744 , 899 S.2d 297 (2d Dept. 2010). Plaintiffs aver that defendants created a special relationship between themselves and plaintiffs by causing Lorriaine Walsh' s medical intoxication and recklessly discharging her without waring her of the danger of driving in her impaired condition. The Cour finds no special relationship here that would warant extending to non-patient plaintiffs the duty owed by defendants to their patient , Lorraine Walsh. Plaintiffs have failed to raise a triable issue offact as to the duty owed by defendants to plaintiffs or whether a special relationship existed between them. In the absence of duty, there is no breach and, therefore , no liability in negligence. [* 8] As recognized by the Cour of Appeals in Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., supra the question of whether a member or group of society owes a duty of care to reasonably avoid injur to another is a question of law for the cours. Where there is a relationship between a defendant and a third person whose actions expose plaintiff to har , such as would require the defendant to attempt to control the third person s conduct , a defendant would have a duty to protect the plaintiff. 72 N. Y.2d 1 v. See Purdy 530 N. Y.S. 2d 513 (1988). While the Cour in Public Adm 'r of County of Westchester Tenuto found , under the circumstances of that case , that a duty of reasonable care extended to the parents of an infant to whom oral polio vaccine was administered , despite the absence of a doctor/patient treatment relationship between the parents 3 and defendant pediatrician, no such special or familial relationship exists here on which to ground liability. In the absence of a special relationship between plaintiffs and defendants and no direct duty owed by defendants to plaintiffs , there is no basis to amend the Verified Complaint to add a cause of action for negligence. " A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit." See DeAngelis v. Lutheran Med Ctr. 58 N. Y.2d 1053 462 S.2d 626 (1983). Although , in limited circumstances , a physician s duty of care has been extended to a patient's family members , cours have been extremely circumspect even in so doing. Accordingly, defendants Hamock , DeLuca, and Island' s motion (Seq. No. 01), pursuant In caring for his infant daughter following elective surgery, plaintiff father was exposed to virulent polio viruses and contracted the disease. Defendant physician had failed to war plaintiff parents of the dangers of the vaccine as recommended by the manufacturer and governent officials. [* 9] to CPLR 9 3211 (a )(7), for an order dismissing plaintiffs ' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action is hereby GRANTED. Defendant South Nassau 321 1 (a)(7), s cross-motion (Seq. No. 02), pursuant to CPLR for an order dismissing plaintiffs ' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action is also hereby GRANTED. 601 , 602 and 1002 , for an Plaintiffs ' cross-motion (Seq. No. 03), pursuant to CPLR order consolidating the instant action , Action #3 , with Action #1 , fied by plaintiffs against Lorraine Walsh under Index No. 8405/09 , and with the two actions filed by Lorraine Walsh consolidated under Index No. 23966/09; and cross-motion , pursuant to CPLR nunc pro tunc order granting plaintiffs leave to serve an amended complaint 3025(b) for an against the defen ants in the instant action adding a cause of action for negligence is hereby DENIED. This constitutes the Decision and Order of the Cour. ENTER: , A. Dated: Mineola, New York July 10 2012 ENTERED JUL 12 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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