Braick v Faxton-St. Luke's Healthcare

[*1] Braick v Faxton-St. Luke's Healthcare 2004 NY Slip Op 51595(U) Decided on September 22, 2004 Supreme Court, Oneida County Julian, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2004
Supreme Court, Oneida County

Salim Mansour Braick, M.D., Plaintiff,

against

Faxton-St. Luke's Healthcare; Leslie Smith, CRNA; Cynthia Silfer, M.D.; Sunset Anesthesia Associates; Nancy Salecki, RN; Pamela Flemma, RN; Sharon Stedman, RN, Michael DeStefano, RN; James Robinson, RN; Maryann Conner, RN; Heidi Vernold; Barb Folger; Carol Holdridge; Linda Young, RN; Marybeth McCall, MD; Zahir Mufti, M.D.; Denish Bhat, M.D.; Michael Troucik, M.D., and James Jenks, M.D., Defendants.



CA2003-000482



ANDREW T. BRAKE, P.C. (Andrew T. Brake, Esq., of Counsel) and Elisabeth Buenger Hughes, Esq., Attorneys for the Plaintiff.

ASWAD & INGRAHAM (Charles O. Ingraham, Esq., of Counsel)for the Defendant Bhat, M.D., Faxton-St. Luke's Healthcare, Salecki, R.N., Flemma, R.N., Stedman, R.N., Sestefano, R.N., Robinson, R.N., Conner, R.N., Vernold, Folger, Holdridge, Young, R.N., Jenks, M.D., McCall, M.D., Mufti, M.D., Smith CRNA, Troucik, M.D.

SCOLARO, SHULMAN, COHEN, LAWLER & BURSTEIN, P.C. (Chaim J. Jaffee, Esq., of Counsel) for the Defendants Sunset Anesthesia Associates and Silfer, M.D.

Robert F. Julian, J.

DISCUSSION:In this case, the Plaintiff seeks to expand the parameters of tort duty and protected interests, asserting a novel theory which the Court declines to adopt.

The facts are straightforward.

Plaintiff is a Medical Doctor with a specialty in Obstetrics-Gynecology. He was a member of the medical staff at Defendant Faxton-St.Luke's Healthcare from 1984 to November 2001, and performed surgery at Faxton hospital. His license to practice medicine and surgery was summarily suspended on November 6, 2001 and subsequently revoked. Dr. Braick exhausted his administrative remedies concerning the license and has sought judicial review in an Article 78 proceeding, the present status of which is not known to this Court.

Dr. Braick brings this action, stating causes of action sounding in:

-Negligence

-Breach of Contract

-Promissory Estoppel

-42 USC §1981

In sum, Dr. Braick claims that the Defendants failed to provide properly trained and supervised personnel to treat and assist in the treatment of Dr. Braick's patients, thus leading to the harm caused to the patients, responsibility for which was ultimately laid at Dr. Braick's feet. He further claims that the hospital and its personnel failed to properly investigate these untoward events and wrongly cast blame upon him. Inter alia, this allegedly resulted in a loss of his license.

Negligence

A negligence claim requires the showing of a duty running from the defendant(s) to plaintiff, a breach of that duty, and damages flowing from the breach. The Defendants here deny that they owed Dr. Braick a legal duty of care to avoid harming one of his patients. Dr. Braick's counsel acknowledged at oral argument (pg 17 of the transcript) that he can point to no New York cases supporting such a claimed duty, but can only point to The Restatement of Torts (Second) concept that a duty to avoid harm to a third person may exist vis a vis treatment or handling of a separate person. This notion of duty has been acknowledged in New York, limited to the risk of bodily injury to a third person. In Tenuto v Lederle Labs 90 NY2d 606 (1997) the Court of Appeals recognized a duty running from a pediatrician to the parents of his patient regarding the administration of polio vaccine, when such administration would create a foreseeable risk of direct physical harm to such parents based on exposure to virulent polio virus. The distance between that duty and Plaintiff's proposed duty to protect the economic interests of third parties while discharging a duty of care to a patient is light years. On what principled basis would Plaintiff distinguish the harm he allegedly suffered because the Defendants mistreated the deceased patient from the harm suffered by, for example, the employer of the Plaintiff in Tenuto who lost the services of, perhaps, a key employee and income producer because of the doctor's negligence? Indeed, a full examination of Tenuto (supra) makes it entirely clear that the Court of Appeals was identifying a very narrow range of circumstances for this kind of third party liability. The Court of Appeals' narrow interpretation of The Restatement of Torts (Second) 2d 324(a) does not allow for an extension of tort duty that the Plaintiff alleges he is owed by the Defendant. There is no duty and thus no negligence.

The circumscription of liability only to those to whom duties arise from appropriate relationships is indicated by Millken & Co. v Consolidated Edison Co 84 NY2d 469, 619 N.Y.S.2d 686, 644 N.E.2d 268, cited by the Court in Tenuto. Negligence on Consolidated Edison's part caused a large power failure that resulted in large economic losses. No duty was held to run to the third parties who were harmed. Indeed, Dr. Braick's position that a tort duty should or could be held to run from operating room personnel to other operating room personnel, [*2]as apart and additional to the duty running to the patient advocates an expansion of the concept of duty that far exceeds the parameters of Tenuto. Anyone playing the role of guest of honor in an operating room would want the prime -indeed sole- duty of reasonable care running to them, not to other people in the room. Plaintiffs proposal to expand the range of those to whom a tort duty would run in an operating room contains no seed of a concept delineating where such duties would end, and whose economic interests would be worth protection. For the principal that realistic limits on liability are inherent in a determination of whether a duty lies, see Tobin v Grossman, 24 NY2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 [1969]. The point is made , relevantly, and with citation to Tobin, in McNulty v City of New York 762 N.Y.S.2d 12, 100 NY2d 227, 792 N.E.2d 162, 2002 NY Slip Op. 14003 [NY, 2003].

If the Plaintiff's theory were to become settled law, everyone who is in the operating room and everyone who has prepared the operating room owes a duty to everyone else to provide proper care to the patient. Thus, in virtually all circumstances where a patient is harmed by a deviation from the standard of care in a hospital setting, a new generation of lawsuits will be spawned arising from any adverse consequences suffered by physicians, nurses, other hospital staff or others persons/entities flowing from a deviation. For example: the plaintiff sues the doctors and hospital and wins. The doctor experiencing licensing problems, loss of reputation or increased premiums then sues other doctors and/or nurses alleging that their negligence caused the doctor to be held liable thereby creating a harm. The concept of duty is thus expanded from that of a physician/patient relationship to encompass a new category that can be defined as a duty to protect a third party from ones own negligence if that negligence adversely impacts the third party's property rights. Indeed, the first suit that might be expected would be a counterclaim by the Hospital against Dr. Braick, alleging that his negligence caused the Hospital to suffer damages, including expenses of investigation, loss of reputation, etc. etc.

The Restatement of Torts does not contemplate such an expansion. For example, Dr. Braick would have required that the nurse who undertook to render services to a patient also recognize that he/she had a duty, when providing care to the patient, to protect a third-person's (Dr. Braick's) property rights. This theory ignores that the nurse is rendering services to a patient to assist in the patient's health care. The objective is to function as a team with the doctor in providing the patient with the best possible outcome using good, usual, customary and accepted practice. The duty is therefore to give patient care, and The Restatement of Torts only expands the traditionally understood scope of duty to the extent that a foreseeable third-person whose body or property might be physically harmed might also be the beneficiary of the duty, as in an infection risk situation. The duty proposed by Dr. Braick is very different it is not that the nurse owes the patient good care as part of the team. He proposes that there is a separate duty owed by the nurse to Dr. Braick to protect his license or to protect him from exposure to lawsuits. The Restatement of Torts (Second) 324(a) only refers to a duty to avoid physical harm to a third person or his things; it does not include language expanding the duty to infliction of intangible harm to property rights. The Restatement views the harm to the third-person as being a sequella of the duty owed to another (the patient). Dr. Braick was not in the shoes of his patients, he did not share in their risk and he did not sustain physical harm to himself or a chattel as a result of a breach of duty. Thus, he cannot be a third-person physically harmed by the breach of any duty owed by the nurses or the hospital to the patient as contemplated by the Restatement of Torts and as further articulated by Tenuto v. Lederle Labs, (supra).

This is consistent with New York's longstanding general reluctance to extend tort liability to cases of economic damage only. See, e.g., Schiavone Const. Co. v. Elgood Mayo Corp. 451 N.Y.S .2d 720, 56 NY2d 667, 436 N.E.2d 1322. See Bocre Leasing Corp. v. General Motors Corp. (Allison Gas Turbine Div.) 840 F. Supp. 2231, Prod. Liab. Rep. (CCH) P 12, 771 [E.D.NY, 1994]. The plaintiff here, of course, does not allege bodily injury or physical injury to a chattel.

If there was a tort duty of care running to Braick it would represent a very broad expansion of the scope of protected interests, and that is an expansion this Court certainly cannot [*3]order. The negligence cause of action must be, and is, dismissed.

Contract/Promissory Estoppel

The Contract based claims can fare no better. There is no allegation that a specific agreement between the Plaintiff and any Defendant was breached. Implied terms of agreement, included in hospital documents, rules, procedures, etc. are alleged to run to Dr. Braick's benefit. Even if Dr. Braick did receive a benefit from the hospital procedures he does not meet the requirements needed to be a third party beneficiary. Dr. Braick was not an express third party beneficiary of any such writings. An intent to confer a direct benefit on a third party must clearly appear in order to enable such a party, not named in the contract, to recover thereunder. Salzman v. Holiday Inns, Inc., 48 AD2d 258 (NY App. Div. , 1975). The benefit so conferred must not be merely incidental but must be immediate in such a sense and to such a degree as to indicate the assumption of a duty to make reparation if the benefit is lost. An incidental beneficiary is a person who may derive benefit from the performance of a contract though he is neither the promisee nor the one to whom performance is to be rendered. One suing as a third party beneficiary has the burden of showing that the provision was for his direct benefit, and unless he can sustain this burden, he is not permitted to sue on the agreement. Salzman, supra. The Plaintiff does not have a claim for breach of contract because there was no express contract that was breached and he is not a third party beneficiary to any implied contracts. The Plaintiff was merely an incidental beneficiary of the hospital rules and procedures.

While the issue has not been raised, the Court is troubled by the overall context (i.e., a plenary action against the hospital and various participants in patient care) within which Dr. Braick has presented his claims. He lost his hospital privileges and thus was harmed. But he did not complete the in-house "fair hearing" procedure to remedy the alleged wrongs. Had that in-house procedure not led to a satisfactory result Dr. Braick could have brought an Article 78 proceeding to challenge the outcome. See, for instance, Pamilla v. Hospital for Special Surgery 637 N.Y.S.2d 689, 223 AD2d 508 N.Y.A.D. 1 Dept.,1996. It is critical to the public health and welfare that Hospitals be charged, in the first instance at least, with the responsibility of determining who should and who should not have privileges to provide treatment in them. Dr. Braick's several claims here are really an effort to have this Court (potentially with the help of any even less expert jury) make that determination by proceeding with claims that effectively challenge the hospital's determination outside of the Article 78 mechanism. The discretion of hospitals in this regard must be protected. Yet this entire complaint is tainted by the reality that it would have the effect of end-running the in-house administrative procedure and the Article 78 mechanism, and invites a Court to substitute its judgment concerning proper hospital policies for the judgments of the hospital and its professional staff.

The contract/promissory estoppel cause of action is dismissed.

Immunity

The Defendants assert that any claims relating to their participation in quality assurance and investigative activities are subject to immunity under Federal and State Law. Under the United States Health Care Quality Improvement Act, 42 U.S.C.S. § 11101 et seq., where a professional review action meets certain enunciated standards, none of those participating in the action may be held liable for damages for that action under the laws of the United States or of any state. Gelbard v. Genesee Hosp., 255 AD2d 882 (NY App. Div. , 1998):

For purposes of the protection set forth in section 11111 (a) of this title, a professional review action must be taken "(1) in the reasonable belief that the action was in the furtherance of quality health care, "(2) after a reasonable effort to obtain the facts of the matter, "(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and "(4) in the reasonable belief that the action was warranted by the facts known after such [*4]reasonable effort to obtain facts and after meeting the requirement of paragraph (3). " A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111 (a) of this title unless the presumption is rebutted by a preponderance of the evidence."

The Plaintiff alleges that the Defendants are not immune because they did not meet the safe harbor standard that is required for immunity. Applying the statute to this case it appears that the Defendants would fall under the immunity granted by the Statute. It was reasonable for the participants to believe that this was in furtherance of quality health care because they were reviewing a death that occurred while the patient was under the Plaintiff's care. The evidence shows that the participants took a reasonable effort to obtain the facts and afforded the Plaintiff adequate notice and a fair hearing by his peers. In order to determine whether a defendant acted with a reasonable belief that their action was in the furtherance of quality health care and was warranted by the facts, a court must apply an objective test of whether there was a sufficient basis for a defendants' actions under the totality of the circumstances. A court must not substitute its judgment for that of a hospital or re-weigh the evidence regarding the termination of a plaintiff's staff privileges. Rather, a court must consider whether a plaintiff's privileges were terminated in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the adequate notice and hearing requirements. Gelbard v. Genesee Hosp., supra. The Defendants would qualify for immunity under the statute about any claims that occurred during the peer review process.

The Defendants allege that New York State law provides immunity to them under Public Health Law 2805-j(2), 2805-m(3), and Education Law 6527(5).

Public Health Law 2805-j(2)

Any person who, in good faith and without malice, provides information to further the purposes of the medical, dental and podiatric malpractice prevention program or who, in good faith and without malice, participates on the quality assurance committee shall not be subject to an action for civil damages or other relief as a result of such activity. Any hospital, or any person acting on behalf of such hospital, who, in good faith and without malice, takes or fails to take any action as a result of a review conducted pursuant to paragraph (b) or (c) of subdivision one of this section, shall not be subject to an action for civil damages or other monetary relief as a result of such action or failure to act, provided, however, that nothing in this subdivision shall relieve any hospital of any liability in an action for medical, dental or podiatric malpractice based on an act or failure to act as a result of a review conducted pursuant to paragraph (b) or (c) of subdivision 1 of this section, and provided further that nothing herein shall affect the authority of the commissioner pursuant to this chapter. Public Health Law2805-m(3)

There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person, partnership, corporation, firm, society, or other entity on account of the communication of information in the possession of such person or entity, or on account of any recommendation or evaluation, regarding the qualifications, fitness, or professional conduct or practices of a physician, to any governmental agency, medical or specialists society, or hospital as required by sections twenty-eight hundred five-j, twenty-eight hundred five-k and twenty-eight hundred five-l of this article or any incident reporting requirements imposed upon diagnostic and treatment centers pursuant to the provisions of this chapter. The foregoing shall not apply to information which is untrue and communicated with malicious intent.

Education Law 6527(5)

There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person, partnership, corporation, firm, society, or other entity on account of the [*5]communication of information in the possession of such person or entity, or on account of any recommendation or evaluation, regarding the qualifications, fitness, or professional conduct or practices of a physician, to any governmental agency, medical or specialists society, a hospital as defined in article twenty-eight of the public health law, [fig 1] a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law, or a health maintenance organization organized under article forty-four of the public health law or article forty-three of the insurance law, including a committee of an individual practice association or medical group acting pursuant to a contract with a health maintenance organization. The foregoing shall not apply to information which is untrue and communicated with malicious intent.

The Defendants qualify for immunity under these sections of New York State law. The allegations against the Defendants arise from their actions during a peer review and quality assessment meetings. The statutes grant immunity to participants as long as there was no malice or false statements made. There is no sufficient evidence that shows that the any statements were false or made with malice which would deprive the Defendants of immunity.

§1981

There is simply not a single iota of proof upon which Plaintiffs §1981 claim can be sustained. He says that bad things were done to him because of his racial/ethnic/national background. He also says bad things were done to him because the hospital was protecting itself and because his competitors were judging him; i.e., he acknowledges, and indeed alleges, non-discriminatory motivations for the wrongful acts against him he claims were committed. In the absence of any evidence of any kind demonstrating or even suggesting an improper discriminatory basis for the actions against Dr. Braick, this claim cannot stand.

42 USCS § 1981 (2004) Equal rights under the law (a) Statement of equal rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment. The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of State law

42 U.S.C.S. § 1981, like the Equal Protection Clause, is violated only by purposeful discrimination. General Bldg. Contractors Ass'n v. Pa., 458 U.S. 375 (U.S. , 1982). The Plaintiff has failed to show any proof that would constitute purposeful discrimination that would allow him to sue under this section. The Plaintiff in sworn affidavits stated two possible reasons why the hospital acted as it did, and neither of these alluded to his national origin. He stated that the hospital took the action against him to protect itself and also that his competitors acted out of economic reasons in deciding against him. The Plaintiff failed to show discriminatory intent [*6]which is a necessary factor in a 42 U.S.C.S. § 1981 suit and thus the Plaintiff has no cause of action.

Plaintiff's prima facie case of disparate discipline may be established if the plaintiff proves by a preponderance of the evidence that (1) the plaintiff is a racial minority, (2) the plaintiff was disciplined by the employer, and (3) the employer imposed the discipline under circumstances giving rise to an inference of racial discrimination. See Jones v. Denver Post Corp. 203 F.3d 748. Plaintiff seeks to satisfy the third item by pointing to the alleged differential treatment of Dr. Norman Angel, yet fails to factually describe Dr. Angel's circumstance with any particularity at all; there is no prima facie showing made of differential treatment, nor any basis to believe such evidence exists. Dr. Braick's showing in this regard is characterization and allegation, yet he describes no specific case, what Dr. Angel did or did not do, how it was handled. He certainly does not provide specifics sufficient to make even a prima facie showing that the fact he was not on "committees" (it is not specified which) or was not chairman of the department (when, who was, what were the facts?...) was as a result of discrimination. With an insufficient showing of disparate treatment, as in Jones, supra, the claim must be dismissed.

The underlying reality of this case is that the Plaintiff had his license revoked by the State of New York, that the revocation was predicated on ten matters, not merely those two here disputed, and that in that context there is no possibility that the Plaintiff can allege that the actions against him were discriminatory and the reasons pretextual. See McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817, 411 U.S. 792, 36 L. Ed. 2d 668. He has failed to make a showing that the actions against him occurred in circumstances giving rise to an inference of racial discrimination. See Hysten v. Burlington Northern and Santa Fe Ry. Co. 296 F.3d 1177. The §1981 claim is dismissed.

For all of the above reasons, the complaint cannot stand, and is dismissed. Defendants shall submit an order upon notice.

Utica, NY _____________, 2004

__________________________________

Robert F. Julian, J.S.C.