Bernard v Goldweber

[*1] Bernard v Goldweber 2012 NY Slip Op 50214(U) Decided on February 6, 2012 Supreme Court, New York County Lobis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 6, 2012
Supreme Court, New York County

Christopher Bernard as Executor of the Estate of SAM BERNARD, Plaintiff,

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.



108433/07



Avelino Law Firm appeared for Plaintiff Sam Bernard.

Martin, Clearwater & Bell, LLP appeared for Defendants Abbe J. Carni, M.D. and Abbe J. Carni, M.D., P.C.

Ellenberg & Rigby, LLP appeared for Defendants Edward S. Goldberg, M.D. and Edward S. Goldberg, M.D., P.C.

Joan B. Lobis, J.

Motion Sequence Numbers 002 and 003 are consolidated for disposition. In Motion Sequence Number 002, defendants[FN1] Abbe J. Carni, M.D. and Abbe J. Carni, M.D., P.C. ("Carni P.C.") (collectively the "Carni Defendants") move, by order to show cause, for an order granting them summary judgment pursuant to C.P.L.R. Rule 3212 and dismissing plaintiff's complaint against them. In Motion Sequence Number 003, defendants Edward S. Goldberg, M.D. and Edward S. Goldberg, M.D., P.C. ("Goldberg P.C.") (collectively the "Goldberg Defendants") move, by order to show cause, for an order granting them summary judgment pursuant to C.P.L.R. Rule 3212 and dismissing plaintiff's claims against them for negligence, lack of informed consent, negligent hiring [*2]and retention, punitive damages, and their vicarious liability for the acts and omissions of co-defendant Brian A. Goldweber, M.D. Plaintiff Christopher Bernard, as executor of the estate of Sam Bernard, opposes both motions.

This action was commenced by the filing of a summons and verified complaint on June 18, 2007. At the time the action was commenced, Sam Bernard was still alive. On June 26, 2007, plaintiff served defendants with a supplemental summons and amended verified complaint. The amended verified complaint asserts five causes of action sounding in medical malpractice, negligence, lack of informed consent, negligent hiring and retention, and punitive damages. The amended verified complaint sets forth that the claims arise out of a procedure performed on Sam Bernard on August 15, 2006 by Dr. Goldberg, for which anesthesia was provided by Dr. Goldweber, and during which it is alleged that Sam Bernard contracted the hepatitis B virus ("HBV") due to unsanitary anesthesia technique. Sam Bernard died from unrelated causes during the pendency of this action, and Christopher Bernard, the executor of Sam Bernard's estate, was thereafter substituted for plaintiff.

On August 15, 2006, Sam Bernard presented to Goldberg P.C. to undergo a colonoscopy. Dr. Goldweber was the anesthesiologist for the procedure. He administered 50 mg of Sodium Pentothal and 90 mg of propofol. Subsequent to the administration of anesthesia, however, Dr. Goldberg aborted the colonoscopy due to poor preparation by the decedent. As such, decedent did not undergo a colonoscopy on that day and was instructed to return. On or about January 23, 2007, a blood test conducted on the decedent at New York University Medical Center revealed an HBV infection, for which he was treated with the antiviral medications Hepsera and Epivir. By May 3, 2007, decedent completed his treatment of HBV. Unrelated to the HBV infection, decedent died from pancreatic cancer on October 30, 2007.

Prior to Sam Bernard's death, in March 2007, the New York City Department of Health and Mental Hygiene ("NYCDOH") commenced an investigation on a possible hepatitis outbreak among patients who had undergone anesthesia under the care of Dr. Goldweber. NYCDOH contacted all patients who received intravenous anesthesia from Dr. Goldweber between the years of 2003 and 2007, and recommended that they get tested for HBV, the hepatitis C virus ("HCV"), and the human immunodeficiency virus ("HIV"). NYCDOH found a number of probable outbreak-associated cases of the hepatitis viruses during its investigation, and eventually concluded that the outbreaks of HBV and HCV were caused by Dr. Goldweber's misuse of syringes while utilizing multi-dose vials of propofol. Specifically, NYCDOH noted that Dr. Goldweber contaminated the multi-dose vials by reinserting a syringe used on a source patient, and thereby introducing the virus to subsequent patients on whom Dr. Goldweber used the same multi-dose vial.

During the course of NYCDOH's investigation of the hepatitis outbreak, the New York State Office of Professional Medical Conduct ("OPMC") commenced an independent investigation of Dr. Goldweber in May 2007. During the pendency of its investigation, OPMC suspended Dr. Goldweber's medical license. In October 2008, OPMC charged Dr. Goldweber with gross incompetence, gross negligence, and failing to comply with provisions governing the practice of [*3]medicine, as a result of his violation of infection control practices and for allowing his infection control certification to lapse in 2006. On March 20, 2009, upon sustaining these charges, and essentially confirming the findings from NYCDOH's investigation, OPMC revoked Dr. Goldweber's license.

During the events in question, Carni P.C. retained Dr. Goldweber, through Goldweber, L.L.C., to provide anesthesiology services to various medical practices that performed ambulatory procedures. Dr. Carni, a board certified anesthesiologist, was the president, sole shareholder, and sole administrator of Carni P.C. In retaining Dr. Goldweber, Dr. Carni testified that he took into consideration: (I) Dr. Goldweber's experience, which indicated that he worked as an attending anesthesiologist for almost twenty (20) years, cumulatively, at Rochester General Hospital and at Lakeside Memorial Hospital; (ii) four highly favorable letters of recommendation from surgeons who worked with him at Rochester General Hospital; and (iii) a letter of recommendation from an anesthesiologist who was Dr. Goldweber's co-member at Rochester General Hospital's anesthesiology department and who also subsequently became the chief of the anesthesiology department at Lakeside Memorial Hospital. Dr. Carni testified that at the time of his retention, Dr. Goldweber had malpractice insurance and an infection control certificate dated May 1, 2002. Dr. Carni further assessed Dr. Goldweber's qualifications by personally observing Dr. Goldweber's administration of anesthesia, including his use of propofol from multi-dose vials, to six to eight patients. Dr. Carni testified that he never observed Dr. Goldweber reuse a syringe to dose a patient from a vial of propofol. After Dr. Carni determined that he was satisfied with Dr. Goldweber's performance, he entered into an oral agreement with Goldweber, L.L.C. for Dr. Goldweber to provide anesthesia services, and, in 2006, entered into a written agreement, which was allegedly identical to the oral version, but included a non-compete provision.

Dr. Goldweber worked five days a week providing anesthesia services for the approximately ten medical practices to which he was sent by Dr. Carni. Carni P.C. furnished Dr. Goldweber with the forms and anesthesia charts he used during the procedures, and paid for all equipment and medication which Dr. Goldweber used. Carni P.C. paid rent to the offices where anesthesiology services were provided in exchange for use of office space, a computer, a telephone, and a place to store its medications and equipment. Carni P.C. determined the patients' fees and the patients, or their insurance companies, were billed directly for the anesthesiology services rendered. The bills did not reflect that the services were rendered by the anesthesiologists who actually rendered the services.

Carni P.C. placed Dr. Goldweber in Dr. Goldberg's office as his primary anesthesiologist. Dr. Carni advised that, if Dr. Goldberg were unhappy with Dr. Goldweber, he would provide someone else. Dr. Carni advised Dr. Goldberg that Carni P.C. would ensure that the anesthesiologists provided would be licensed, would have the required certifications, and would carry malpractice insurance. Dr. Goldberg did not independently investigate Dr. Goldweber's qualifications and, instead, relied on Dr. Carni to do so. Dr. Goldberg testified that he believed that an employer/employee relationship existed between Dr. Carni and Dr. Goldweber because Dr. Carni vouched for his anesthesiologists' credentials and told Dr. Goldberg that the anesthesiologists worked [*4]for him, were paid by him, and were maintaining their credentials.

Plaintiff alleges that the Carni and Goldberg Defendants are vicariously liable for Dr. Goldweber's negligent transmission of HBV to Sam Bernard during the August 15, 2006 procedure. Plaintiff further alleges that the Carni and Goldberg Defendants failed to obtain decedent's informed consent prior to undergoing the procedure, and negligently hired, retained and supervised Dr. Goldweber. Plaintiff also alleges negligence against the Goldberg Defendants. Additionally, plaintiff seeks punitive damages against all defendants. The Carni and Goldberg Defendants move for an order granting them summary judgment. Additionally, the Carni and Goldberg Defendants seek to dismiss punitive damages. Plaintiff opposes both motions, arguing that material issues of fact remain as to all allegations.

The law is well settled that the movant on a summary judgment application bears the initial burden of prima facie establishing their entitlement to the requested relief, by eliminating all material allegations raised by the pleadings. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Kuri v. Bhattacharya, 44 AD3d 718 (2d Dep't 2007). The failure to do so mandates the denial of the application, "regardless of the sufficiency of the opposing papers." Winegrad, 64 NY2d at 853. Once a moving party makes its required showing, the burden shift to the other side to demonstrate the existence of a material fact. Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316, 320 (2009).

As to the cause of action sounding in lack of informed consent, the Carni Defendants' motion is supported by their expert Alan Pollock, M.D.'s opinion that HBV is not a reasonably foreseeable risk of undergoing anesthesia, and as such, the risk cannot be disclosed to a patient prior to the procedure in order to obtain the patient's informed consent. The Goldberg Defendant's motion is supported by an affirmation from counsel stating that Dr. Goldberg needed only to disclose the risks involved with the colonoscopy, the procedure that he performed. The attorney further argues that plaintiff concedes that Sam Bernard's HBV was allegedly transmitted by way of improper anesthesia technique, which was Dr. Goldweber's responsibility. Plaintiff opposes both arguments, stating that Dr. Goldberg's practice was known to be one where many patients were hepatitis positive, and in such a practice, the foreseeability of an event occurring becomes arguable. Plaintiff's argument is unpersuasive. A physician is not required to inform a patient of the risks the patient might encounter if subjected to departures from acceptable standards of medical care, and plaintiff does not refute the Carni Defendants' prima facie showing that HBV is not a foreseeable risk of a colonoscopy or the Goldberg Defendants' showing that Dr. Goldberg was not responsible for disclosing risks associated with anesthesia. See NY Pub. Health § 2805-d. Thus, the lack of informed consent cause of action is dismissed as to the Carni and Goldberg Defendants.

As to plaintiff's claim against Dr. Goldberg sounding in negligence, plaintiff alleges that Dr. Goldberg had a duty to provide Sam Bernard with a safe, clean, and disease-free setting. Dr. Goldberg seeks summary judgment on the grounds that plaintiff's pleadings are duplicative of his malpractice claims, and that plaintiff fails to state a cause of action of negligence. Dr. Goldberg further states that he maintained sterile equipment and a disease-free environment, and that neither [*5]his equipment nor the environment proximately caused decedent to contract HBV.

In opposition, plaintiff argues that the Goldberg Defendants have provided scant support for their contention that plaintiff has not made out a cause of action sounding in negligence and, as such, have not established a prima facie entitlement to summary judgment on the claim. Plaintiff further argues that his claim that the Goldberg Defendants breached their duty to provide Sam Bernard with a safe surgical setting and medical providers is an allegation that sounds in negligence, rather than medical malpractice, because the claims relate to the type or quality of environment, equipment, and workers that the Goldberg Defendants provided, and do not relate to the medical treatment that the decedent received. Plaintiff maintains that the duty to prevent disease transmission is not solely a matter of medical malpractice, but is more of a claim sounding in general negligence.

"[M]edical malpractice is simply a form of negligence, [and] no rigid analytical line separates the two[.]" Scott v. Uljanov, 74 NY2d 673, 674 (1989). While a health care provider "in a general sense is always furnishing medical care to patients, . . . clearly not every act of negligence toward a patient would be medical malpractice." Bleiler v. Bodnar, 65 NY2d 65, 73 (1985). When "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the . . . failure in fulfilling a different duty," the claim sounds in negligence. Id.; Weiner v. Lenox Hill Hosp., 88 NY2d 784, 788 (1996); Rodriguez v. Saal, 43 AD3d 272, 275 (1st Dep't 2007). The determinative question is "whether the challenged conduct bears a substantial relationship to the rendition of medical treatment to a particular patient." Weiner, 88 NY2d at 788 (internal citation and quotation marks omitted); Wahler v. Lockport Physical Therapy, 275 AD2d 906, 907 (4th Dep't 2000).

The court agrees with plaintiff that the claim of failing to maintain sterile equipment and disease-free environment sounds in negligence. However, this claim, as pleaded, is merely conclusory, because plaintiff fails to articulate supporting facts that are distinct from those related to the malpractice claims. Plaintiff concedes that the harm of contracting HBV resulted from Goldweber's use of the unsterilized syringe during anesthesia, and not from defendants' failure to maintain sterile and safe environment. Plaintiff does not allege that the equipment used for the colonoscopy was unsterilized. As such, plaintiff will be unable to establish any breach of duty or proximate cause on his negligence claim. The Goldberg Defendants have fulfilled their prima facie entitlement to summary judgment on this issue. Plaintiff has failed to offer evidence of disputed facts that defeat summary judgment on the negligence claim, and accordingly, the court dismisses plaintiff's negligence claim against the Goldberg Defendants.

As to plaintiff's claim that all of the moving defendants are in a position to be held vicariously liable for Dr. Goldweber's medical malpractice, both the Carni and Goldberg Defendants seek summary judgment. As to the Carni Defendants, Dr. Carni maintains that he cannot be held vicariously liable for Dr. Goldweber's medical malpractice because he did not personally hire Dr. Goldweber, rather, his professional corporation Carni P.C. hired Dr. Goldweber. Dr. Carni asserts that B.C.L. § 1505(a) precludes the imposition of liability against the sole shareholder of a professional corporation where the individual did not directly render or supervise the person [*6]rendering the professional services giving rise to the alleged malpractice. The Carni Defendants additionally argue that they should not be held vicariously liable for the negligent acts of Dr. Goldweber, because Dr. Goldweber's independent contractor status shields them from liability when neither Dr. Carni, personally, nor the corporation exercised control over the means or results of Dr. Goldweber's work. They maintain that they did not supervise Dr. Goldweber in performing anesthesia on Sam Bernard. The Carni Defendants further argue that they cannot be held vicariously liable for Dr. Goldweber's action based on the theory of apparent authority because there is no evidence that the decedent relied on any representations by Dr. Carni or Dr. Goldweber that Dr. Goldweber was acting on behalf of Carni P.C., and could not have relied on any such representations in deciding to undergo anesthesia by Dr. Goldweber. The Carni Defendants further states that Dr. Goldweber testified that he made no reference to Dr. Carni or Carni P.C. when introducing himself to patients.

In opposition, as to Dr. Carni personally, plaintiff argues that Dr. Carni did directly supervise and control Dr. Carni, in hiring him, in telling him where and when to work, and in paying for his supplies, and thus may be held liable for the acts of Dr. Goldweber under B.C.L. § 1505(a). Further, plaintiff states that despite Dr. Goldweber's independent contractor status, Carni P.C. may still be held vicariously liable for Dr. Goldweber's negligent acts because it falls under all three exceptions to the general rule governing vicarious liability of independent contractors. Citing Kleeman v. Rheingold, 81 NY2d 270 (1993), plaintiff asserts that: (i) Carni P.C. was negligent in selecting, instructing or supervising Dr. Goldweber because Dr. Goldweber was not competent in performing his work; (ii) the nature of the work performed by Dr. Goldweber is inherently dangerous or, at the very least, is a question of fact to be determined by the jury; and (iii) Carni P.C. had a duty that is so important that is non-delegable. Furthermore, plaintiff argues that the Carni Defendants, given their conduct, can be held vicariously liable under a theory of apparent authority. Plaintiff states that courts have generally found that patients view their anesthesia services as a part of the principle treatment sought, and therefore a question of fact exists as to whether Sam Bernard reasonably believed that Dr. Goldweber was acting on behalf of the Carni Defendants.

First, the court finds plaintiff's apparent agency argument to be misplaced, and plaintiff offers no evidence to support his claim that the Carni Defendants can be held vicariously liable based on this theory. Plaintiff fails to articulate any conduct or words that may give rise to apparent agency. Additionally, Sam Bernard did not present to Carni P.C. for medical services, and as such, plaintiff's argument is illogical. Accordingly, the Carni Defendants may not be held vicariously liable for the conduct of Dr. Goldweber based on this argument.

Additionally, plaintiff does not dispute the Carni Defendants' statement that Dr. Goldweber was an independent contractor, and, thus, Carni P.C. cannot be held vicariously liable for Dr. Goldweber's conduct. The court finds unpersuasive plaintiff's argument that the three exceptions to this general rule apply to Carni P.C. As to the first exception, plaintiff has not shown that Carni P.C. could have reasonably anticipated Dr. Goldweber's inclination to break sterile technique, that Dr. Goldweber was unqualified at the time of his retention, or that Carni P.C. could not reasonably have relied on the experiential and educational pedigree and favorable letters of recommendation that Dr. [*7]Goldweber presented when he applied for the position. See Maristany v. Patient Support Servs., Inc., 264 AD2d 302, 303 (1st Dep't 1999). As to the second exception, it has been determined that the administration of anesthesia does not, as a matter of law, constitute inherently dangerous work, as it is "an accepted medical service provided by a medical professional who [is] under a duty to perform the service in a manner consistent with [his or] her legal and professional responsibilities." Robinson v. Jewish Hosp. & Med. Ctr. of Brooklyn, 275 AD2d 362, 364 (2d Dep't 2000) (citations omitted). As to the third exception, plaintiff fails to demonstrate how the anesthesia services provided by Carni P.C. is a non-delegable duty, as it is not statutorily imposed or a public policy consideration. The case that plaintiff cites, Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So. 2d 343 (Fla. Dist. Ct. App. 1st Dist. 2003), is neither applicable nor binding on this court. Accordingly, Carni P.C. cannot be held vicariously liable for the actions of Dr. Goldweber based on these arguments.

Furthermore, the court agrees that B.C.L. § 1505(a) applies to preclude the imposition of liability against Dr. Carni, personally, for the acts of Dr. Goldweber. Plaintiff argues that Dr. Carni had direct supervision over Dr. Goldweber, but his examples pertain to the administrative side of the business of providing anesthesiologists, not to medical technique. There is no allegation that Dr. Carni was either present during Sam Bernard's procedure or had any supervision over the anesthesia administered by Dr. Goldweber during that procedure. The crux of the vicarious liability claim is that Dr. Carni should be held liable for supervising the alleged malpractice, but there is no allegation that Dr. Carni did so in this case. Accordingly, the claim against Dr. Carni for vicarious liability for Dr. Goldweber's malpractice must be dismissed.

As to the Goldberg Defendants, they assert that Dr. Goldberg (and, presumably, Goldberg P.C.) is not vicariously liable for Dr. Goldweber's malpractice because Dr. Goldweber was neither an employee of nor an independent contractor for the Goldberg Defendants. They maintain that Dr. Goldberg neither supervised nor directed Dr. Goldweber's professional activities; that Dr. Goldweber, through Dr. Carni, billed patients and/or their health care insurers directly and separately from Goldberg P.C.; and that Dr. Goldberg, a gastroenterologist, maintained no control over the methods and means used by Dr. Goldweber, an anesthesiologist.

In opposition, plaintiff asserts that Dr. Goldweber was under the direct control of Dr. Goldberg because Dr. Goldweber only worked in Dr. Goldberg's office with Dr. Goldberg's approval and at Dr. Goldberg's request, and argues that there remains an issue of fact as to whether Dr. Goldberg exercised control over Dr. Goldweber. He argues that simply because Dr. Goldberg may have been less familiar with anesthesiology does not mean that he should not have been supervising Dr. Goldweber. Additionally, plaintiff argues that Dr. Goldberg's duty to his patients was so important that it could not have been delegated to anyone. Finally, plaintiff argues that Dr. Goldberg may be held liable for Dr. Goldweber's malpractice under a theory of apparent authority, because the anesthesia services provided would have been considered by patients as part of the principle treatment sought. Plaintiff argues that Sam Bernard chose Dr. Goldberg to perform the procedure, but he did not choose Dr. Goldweber to perform the anesthesia and only met Dr. Goldweber on the day of the procedure. Plaintiff maintains that he has raised issues of fact as to whether Dr. Goldberg [*8]exercised sufficient control over Dr. Goldweber and as to whether there was apparent agency sufficient enough to allow the claim for vicariously liability to survive the motion for summary judgment.

The court finds unpersuasive plaintiff's argument that the Goldberg Defendants exercised sufficient control over Dr. Goldweber, because plaintiff does not articulate how the Goldberg Defendants supervised Dr. Goldweber. The court also finds unpersuasive plaintiff's argument that providing anesthesia services is a non-delegable duty, because, as cited before, it has been determined that the administration of anesthesia does not, as a matter of law, constitute inherently dangerous work. However, the court does agree with plaintiff that there remains an issue of fact with regard to whether Dr. Goldweber was acting on behalf of the Goldberg Defendants as their apparent agent. Plaintiff cites a number of cases where courts have denied summary judgment due to issues of fact as to vicarious liability of a principal based on a theory of apparent or ostensible agency. In Dragotta v. Southampton Hosp., 39 AD3d 697, 699 (2d Dep't 2007), the Court states that for a principal to be held vicariously liable, the patient must have reasonably believed that the treating physicians were provided by or acted on behalf of the defendant medical institution. The facts here are similar to Dragotta. Dr. Goldweber was neither an independent contractor nor employee of the Goldberg Defendants. Carni P.C. billed Dr. Goldberg's patients directly and the patients were told of the different billing requirement should they elect to undergo anesthesia. Sam Bernard did not chose Dr. Goldweber to perform the anesthesia and only interacted with Dr. Goldweber for the anesthesia portion of the procedure. Notwithstanding that no contract existed between the Goldberg Defendants and the Carni Defendants, a conduct of exclusivity may have still existed, which raises a triable issue of fact. Additionally, because courts have noted that patients generally view their anesthesia services to be a part of the principle treatment sought, Sam Bernard may have reasonably believed that Dr. Goldweber was acting on behalf of the Goldberg Defendants. Duncan v. Mount St. Mary's Hosp. of Niagara Falls, 176 Misc 2d 201, 204—05 (Sup. Ct. Erie Co. 1998). Accordingly, the branch of Goldberg Defendants' motion seeking to dismiss the vicarious liability claim is denied.

As to the claims sounding in negligent hiring, retention, and supervision, the Carni Defendants argue that these claims must be dismissed because Dr. Carni could not have reasonably known that Dr. Goldweber had a propensity to break sterile technique. Plaintiff asserts that Dr. Carni was negligent in retaining Dr. Goldweber by not contacting Dr. Goldweber's former employers or references and by not investigating Dr. Goldweber's disciplinary history. Plaintiff further argues that had Dr. Carni conducted even the most routine of checks, he would have discovered Dr. Goldweber's propensity to break sterile technique. Additionally, plaintiff argues that Dr. Carni personally witnessed Dr. Goldweber's propensity when he saw Dr. Goldweber utilize a multi-use vial of propofol to dose more than one patient.

Although negligent hiring, retention, and supervision claims may be asserted against one who retains an independent contractor (see Chuchuca v. Chuchuca, 67 AD3d 948, 950 [2d Dep't 2009]), a successful claim requires a showing that the employer was on notice of the wrongdoer's tortious leanings. Rochlin v. Alamo, 209 AD2d 499, 500 (2d Dep't 1994). Contrary to plaintiff's contentions, even if Dr. Carni had checked Dr. Goldweber's references, had investigated the gap [*9]between his employment at Rochester General Hospital and at Lakeside Memorial Hospital, and had discovered whether he had ever been sanctioned, these investigations would not have revealed that Dr. Goldweber had a propensity for breaking sterile technique and infecting patients with HBV. Additionally, through his testimony and his expert's testimony, Dr. Carni has prima facie demonstrated that it was appropriate to use a multi-dose vial of propofol on more than one patient, as long as sterile technique was maintained. Dr. Carni had no knowledge simply from observing Dr. Goldweber, prior to his retention, of his propensity to break sterile technique, because Dr. Carni did not witness Dr. Goldweber re-use the same syringe or store an open vial of propofol overnight. Furthermore, plaintiff has not shown that the mere use of multi-dose vials on more than one patient is de facto negligence. As such, plaintiff has not successfully rebutted Dr. Carni's prima facie showing of entitlement to dismiss of negligent hiring/retention claim. Accordingly, the branch of the Carni Defendants' motion seeking an order granting them summary judgment dismissing the negligent hiring/retention causes of action is granted.

The Goldberg Defendants also seek an order granting them summary judgment dismissing the negligent hiring/retention causes of action, on the grounds that it was the Carni Defendants that hired and retained Dr. Goldweber. As such, the Goldberg Defendants argue that plaintiff will be unable to show that Dr. Goldberg had knowledge of Dr. Goldweber's credentialing deficiencies or had any reason to believe that Dr. Goldweber had a propensity to break sterile technique. Dr. Goldberg also asserts that he relied upon Dr. Carni, a board certified anesthesiologist, to ensure that the anesthesiologist he provided would be properly qualified, with the requisite certifications and license.

In opposition, plaintiff argues that Dr. Goldberg had an independent duty to investigate those who are hired at his practice and that had he conducted a background check on Dr. Goldweber, he would have been aware of Dr. Goldweber's prior disciplinary history. Additionally, plaintiff argues that the mere fact that Dr. Goldweber was licensed does not mean that he did not have a propensity to break sterile technique. Therefore, plaintiff states, Dr. Goldberg may not be absolved of liability where, had he exercised reasonable care, he would have ascertained that Dr. Goldweber was not properly qualified.

This branch of the Goldberg Defendants' motion is granted, and the negligent hiring/retention causes of action are dismissed as to them, because a reasonable inquiry would not have shown Dr. Goldweber's propensity to break sterile technique. Moreover, the Goldberg Defendants were entitled to delegate the hiring services and the service of ensuring that Dr. Goldweber's credentials were kept current to Dr. Carni. See Sandra M. v. St. Luke's Roosevelt Hosp. Ctr., 33 AD3d 875, 880 (2d Dep't 2006) (service of supplying staff to hospital is not so integral to hospital's main job of providing health care that hospital is barred from delegating that ancillary service, as well as the liability for doing so negligently, to an independent contractor).

The Goldberg and Carni Defendants also seek to dismiss plaintiff's punitive damages claim. The Carni and Goldberg Defendants argue that they did not, themselves, act willfully and that plaintiff fails to articulate any allegation beyond ordinary negligence that would warrant punitive [*10]damages. Plaintiff opposes, arguing that the NYCDOH determined that Dr. Goldweber was grossly negligent and recklessly indifferent on more than one occasion, and that the moving defendants ratified Dr. Goldweber's conduct because they were aware that Dr. Goldweber was using multi-dose vials on more than one patient.

Punitive damages are not intended to compensate a plaintiff, but instead serve to punish the wrongdoer and deter that individual and those in a similar situation from engaging in the same behavior in the future. Ross v. Louise Wise Servs., Inc., 8 NY3d 478, 489 (2007). More than mere negligence or carelessness is required to permit a punitive damages claim. Fordham-Coleman v. Nat'l Fuel Gas Distrib. Corp., 42 AD3d 106, 113 (4th Dep't 2007); Rey v. Park View Nursing Home, 262 AD2d 624 (2d Dep't 1999); Gruber v. Craig, 208 AD2d 900, 901 (2d Dep't 1994).

To justify the imposition of punitive damages, the conduct must be "exceptional, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness . . . or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights." Ross v. Louise Wise Servs., Inc., 8 NY3d at 489 (internal quotation marks and citations omitted). In a malpractice action, punitive damages are "not recoverable unless the conduct is wantonly dishonest, grossly indifferent to patient care, or malicious and/or reckless." Schiffer v. Speaker, 36 AD3d 520, 521 (1st Dep't 2007). A principal can be liable for punitive damages as a result of an employee or agent's reckless conduct where the principal "orders, participates in, or ratifies the outrageous conduct." Loughry v. Lincoln First Bank, 67 NY2d 369, 378 (1986).

Failing to investigate Dr. Goldweber's disciplinary history, failing to properly supervise Dr. Goldweber, and being aware of Dr. Goldweber's use of multi-dose vials are not allegations that amount to willful behavior on the part of the Carni and Goldberg Defendants. Because neither the Carni nor the Goldberg Defendants witnessed Dr. Goldweber breaking sterile technique, they did not ratify Dr. Goldweber's behavior as to be placed on the requisite notice.

Accordingly, it is hereby

ORDERED that Abbe J. Carni, M.D. and Abbe J. Carni, M.D., P.C.'s motion (Sequence Number 002) which seeks an order granting them summary judgment dismissing all claims against them is granted; and it is further

ORDERED that the branches of Edward S. Goldberg, M.D. and Edward S. Goldberg, M.D., P.C.'s motion (Sequence Number 003) which seek an order granting them summary judgment dismissing the negligence and the negligent hiring/retention causes of action, and the punitive damages claim, are granted; and it is further

ORDERED that the branch of Edward S. Goldberg, M.D. and Edward S. Goldberg, M.D., P.C.'s motion (Sequence Number 003) which seeks an order granting them summary judgment dismissing the claim that they are vicariously liable for the acts and omissions of Brian A. Goldweber, M.D. and Brian A. Goldweber, M.D., L.L.C. is denied.

[*11]

Dated: February 6, 2012ENTER:

_____________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1: Brian A. Goldweber, M.D. and Brian A. Goldweber, M.D., L.L.C. have not appeared in the action and have been discharged in bankruptcy.