Opinion
Argued September 16, 1997
Decided October 16, 1997
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered October 3, 1996, which (1) reversed, on the law, to the extent appealed from, two orders of the Supreme Court (Karla Moskowitz, J.), entered in New York County, granting motions by defendants for summary judgment dismissing plaintiffs' respective causes of action for negligence, and (2) reinstated plaintiffs' causes of action for ordinary negligence. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed to the extent appealed from, the orders of the Supreme Court, properly made?"
In these two personal injury actions, consolidated for trial, the injured plaintiffs assert causes of action for ordinary negligence and medical malpractice arising from the poisoning of intravenous fluid, administered while each was unconscious and recovering from orthopedic surgery. The surgeries were performed on the morning of April 21, 1989 in operating rooms 4 and 5, located on the 10th floor of defendant Lenox Hill Hospital. In both cases, Pavulon, a neuromuscular blocking agent, was injected into intravenous bags, causing the patients to suffer respiratory paralysis. Both were treated with muscle relaxant reversal agents and revived. Upon investigation, it was discovered that one intravenous bag from each operation bore a needle puncture mark and that there was a high concentration of Pavulon in the solution. Discarded vials of the anesthetic and wrappings from intravenous bags were found under a shelf in a storage room, located just off the operating rooms on the 10th floor. This room was not locked, and detectives with the New York City Police Department concluded that this is where the tampering probably took place. Plaintiffs allege that defendant hospital was negligent in failing to secure the room in which the Pavulon was stored. Defendants contend that because the person who intentionally injected the potentially lethal amount of Pavulon into the intravenous solution bags has never been identified, the temporary paralysis experienced by the injured plaintiffs is attributable to the act of an intervening agent; therefore, even presuming that the hospital was negligent in failing to lock the storeroom or otherwise secure the anesthetic, any injury is attributable to a criminal and unforeseeable superseding act that breaks any causal connection with the purported negligence.
The Appellate Division concluded that there is an absence of proof with respect to who administered the Pavulon, when it was introduced into the intravenous bags, how it was acquired or where the tampering took place, except that the evidence suggests it was on the 10th floor of the hospital; that defendants seek to deny the injured plaintiffs recovery on their ordinary negligence theory because the circumstances under which the drug came to be introduced into the intravenous solution and the person or persons responsible cannot be ascertained; that while it is plausible that the criminal act of an intervening agent caused the harm for which recovery is sought, adopting defendants' theory requires the resolution of factual inferences in favor of defendants, which is improper on a motion for summary judgment; that questions of fact were raised by the testimony of plaintiffs' experts that the hospital's failure to secure anesthetic drugs constitutes a deviation from accepted practice; that dismissal of the causes of action for ordinary negligence asserted against the hospital is unwarranted, since the circumstances of this incident afford sufficient basis for an inference of negligence under the doctrine of res ipsa loquitur: it involves injury which would not have occurred in the absence of negligence in safeguarding a dangerous substance, admittedly under the hospital's exclusive control; and that in view of the concession by the hospital that access to the Pavulon was restricted to its agents, plaintiffs have established a prima facie case of negligence and summary judgment dismissing their claims for ordinary negligence must be denied.
Morris v Lenox Hill Hosp., 232 A.D.2d 184, affirmed.
Williams v Lenox Hill Hosp., 232 A.D.2d 184, affirmed.
Aaronson, Rappaport, Feinstein Deutsch, L.L.P., New York City ( Steven C. Mandell of counsel), for appellants.
Schneider, Kleinick, Weitz, Damashek Shoot, New York City ( Harry Steinberg and Brian Shoot of counsel), for respondents.
Order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the memorandum of the Appellate Division ( 232 A.D.2d 184).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.