Jackson v New York Univ. Downtown Hosp.

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[*1] Jackson v New York Univ. Downtown Hosp. 2007 NY Slip Op 52481(U) [18 Misc 3d 1109(A)] Decided on October 24, 2007 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2007
Supreme Court, Kings County

Bridget Jackson and Richard Jackson, Plaintiffs,

against

New York University Downtown Hospital and Douglas G. Chisolm, Defendants



37050/02



Plaintiff's Attorney:

Rimland & Associates, 32 Court Street, Brooklyn, NY 11201 (718)222-1919

Defendant's Attorney:

Murphy & Higgins, 1 Ramada Plaza, New Rochelle, NY 10801

(914) 712-1100

Martin, Clearwater & Bell, 220 E. 42nd Street, New York, NY 10017

(212) 697-3122

Marsha L. Steinhardt, J.

The defendant New York University Hospital moves this Court seeking an order:

a) pursuant to CPLR §3212 granting said defendant summary judgment and dismissing all claims against said defendant with prejudice;

b) directing entry of judgment in favor of said defendant;

c) deleting said defendant from the caption; and

d) such other and further relief as to this Court seems just and proper.

The plaintiffs cross-move seeking an order:

a) striking the Answer of the defendant New York University Downtown Hospital for its willful failure in providing any documentary discovery in this action, or in the alternative, compelling the defendant to provide adequate responses to plaintiffs' demands for discovery;

b) permitting the plaintiffs, if the Court does not strike said defendant's Answer, to withdraw their Note of Issue and obtain an extended date by which to file same so that the additional discovery may transpire; [*2]

c) such other and further relief as this Court deems just and proper.

Now, upon the foregoing papers and upon hearing oral argument on October 4, 2007 and due deliberation had thereon the motion is in all respects Granted, the Complaint as against the defendant New York University Downtown Hospital is Dismissed and the action is severed accordingly.

Plaintiff claims that NYU Downtown Hospital was negligent in supervising its staff by allegedly advising Mr. Chisolm, a male CRNA to be alone with Ms. Jackson, a female patient, in preparation for the April 24, 2002 surgical procedure. Plaintiffs further allege that the Hospital negligently hired and retained Mr. Chisolm. Plaintiffs also allege that the Hospital is responsible for the actions of its staff, including Mr. Chislom via the theory of respondeat superior. The plaintiffs allege that this ultimately resulted in emotional injuries to Ms. Jackson pursuant to an alleged sexual assault by Mr. Chisolm at the Hospital on April 24, 2002.

On April 29, 1991, Douglas Chisolm, was hired by NYU Downtown Hospital as a nurse anesthetist on a temporary basis, pending his appointment to the Medical Staff. Prior to being offered the position of nurse anesthetist, Mr. Chisolm was interviewed by Dr. Alexander Paspa, Chairman of the anesthesia department at NYU Downtown Hospital.

As part of the hiring process, the Hospital obtained letters of recommendation from Nurse Chisolm's former supervisors at St. John's Episcopal Hospital, Dr. Adel Aziz, Chief of Service, Anesthesia Department, and Thomas Evans, CRNA. The letter of Dr. Aziz dated April 6, 1991 states in pertinent part: "His approach to patient's care and work in general, was extremely satisfactory...

Mr. Chisolm is conscientious, reliable and hard working."

The letter from Thomas Evans, CRNA dated April 16, 1991 provides in pertinent part:

"Mr. Chisolm is a reliable, pleasant, hard working and well mannered nurse

anesthetist."

No incidents of prior misconduct were mentioned by either individual. Mr. Chisolm has never been convicted of any crime nor been professionally disciplined. On his application for employment with NYU Downtown Hospital, Mr. Chisolm denied any prior convictions and that he left St. John's Episcopal Hospital voluntarily.

Between April 29, 1991 and April 24, 2002, no complaint of misconduct and/or inappropriate behavior was ever filed against Mr. Chisolm.

Ms. Jackson alleges that once she was in the operating room on April 24, 2002 and lying on the table she was alone with Mr. Chisolm as he inserted an IV cannula into her left arm. It is then alleged that he sexually abused her.

An employer may be held liable for the tortious acts of its employees only if these acts were committed in furtherance of the business of the employer and within the scope of employment.

Riviello v. Waldron, 47 NY2d 297. In Judith M. v. Sisters of Charity Hospital, 93 NY2d 932 the Court of Appeals rejected the plaintiff's claim of vicarious liability of the hospital for an employee's alleged sexual abuse of a patient in holding that even if the allegations of sexual abuse were true, it is clear that the employee departed from his duties solely for personal motives unrelated to the furtherance of the Hospital's business. See also, Koren v. Weihs, 190 AD2d 560. Therefore, the instant hospital may not be held vicariously liable for the alleged actions of sexual abuse of Mr. [*3]Chisolm, even if they are ultimately established to have occurred.

Moreover, intentional torts such as assault and battery are clearly outside the scope of negligence and/or medical malpractice and therefore, the instant hospital cannot be held vicariously liable for the actions of Mr. Chisolm under such a theory. In addition, the plaintiffs have not established that the hospital departed from standard care. There is no evidence that it departed from the standard of care by permitting a male nurse anaesthetist such as Mr. Chisolm, to prepare a female patient for anesthesia alone. Plaintiffs cannot establish that there was a departure and if so that said departure was a proximate cause of the plaintiff's injury or damages. See, Preta v. Rafla-Demetrious, 224 AD2d 674.

Plaintiff further alleges that the Hospital can still be held liable under theories of negligent hiring, negligent retention and negligent supervision. However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for that conduct which caused the injury. Sato v. Correa, 272 AD2d 389, app. dismissed, 91 NY2d 848.

There is no common-law duty to actively investigate prospective employees unless the employee is aware of facts that would lead a reasonably prudent employer to probe that employee. Kennith R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159. In fact in that case the court held that the receipt of a satisfactory letter of recommendation on behalf of a prospective employee obviates the need for further investigation.

As concerns the Hospital's pre-employment investigation the Hospital received 2 letters of recommendation from Mr. Chisolm's direct supervisors at St. John's Episcopal Hospital. No incident of prior misconduct was within these letters of recommendation. Mr. Chisolm became licensed to practice nursing in New York State in 1983 and he never had his license suspended or revoked. Prior to the subject incident that allegedly occurred on April 24, 2002 Mr. Chisolm had never been convicted of any crime nor had he professionally been disciplined by any licensing authority. His personnel file contains no indication of any propensity by Mr. Chisolm to engage in sexual misconduct. He had been evaluated on an annual basis and there were no negative evaluations.

While it appears that there had, in fact, been another incident which allegedly occurred in March 1990 all criminal charges stemming from that arrest were dismissed with prejudice on May 23, 1991. Mr. Chisolm was hired by the defendant as an employee on January 1, 1995. As of February 22, 1996, Mr. Chisolm was cleared by both a criminal court and a civil disciplinary proceeding. By April 24, 2002 Mr. Chisolm was a respected nurse anaesthetist with over 10 years of service without a complaint.

Plaintiff's reliance upon Glover v. Augustine, 38 AD3d 364 and The New York Sex Offenders Registration Act ("SORA") is misplaced. That legislation was signed into law on January 21, 1996 and therefore did not exist until years after Mr. Chisolm's arrest was dismissed with prejudice. Glover is inapplicable as the employee in that case was a convicted felon and sex offender. Mr. Chisolm has never been convicted of any crime. Mr. Chisolm is not and never was a registered sex offender.

Moreover, the State of New York makes it unlawful to "make any inquiry about, whether in any form of application or otherwise, or act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by termination of that criminal action or proceeding in favor of such individual." NY Executive Law §396.16.

The Equal Employment Opportunity Commission (EEOC) Policy Guidance on the [*4]Consideration of Arrest Records in Employment Decisions, No. N.915-061 states that arrest records can only be used when, among other things, "it appears that the applicant or employee engaged in the conduct for which he was arrested."

Thus, pursuant to the laws of the State of New York and federal law, it would have been illegal for the defendant Hospital to deny employment to Mr. Chisolm based upon the accusations resulting in the March 23, 1990 arrest.

Plaintiffs' assertion that the state disciplinary panel found the 1990 accusation credible is misleading and insufficient to create an issue of fact as all charges were dismissed.

Likewise, the letter of Mark R. Stenzler is insufficient to create an issue of fact. Said letter does not contain a jurat indicating that the statement was made under oath; nor is there any indication that it was intended as an affidavit in that the word "confidential" is inscribed at the top of the correspondence and it consists of mere conclusions and speculations which, are at best, in part based upon erroneous interpretation of the police records.

In light of the above the cross-motion is rendered academic.

This constitutes the Decision and Order of this Court.

E N T E R,

J.S.C.

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