Opinion
36958/07.
Decided November 16, 2011.
Defendants, ABBE J. CARNI, M.D. and ABBE J. CARNI, M.D., P.C. (Carni defendants) seek summary judgment claiming that plaintiff cannot make a prima facie showing of negligence of codefendant Brian Goldweber, M.D. They claim that even if negligence can be established on the part of Dr. Goldweber, summary judgment is warranted as to claims that the Carni defendants are vicariously liable for Dr. Goldweber's acts pursuant to the doctrines of Respondeat Superior and/or Ostensible Agency. The Carni defendants also move for summary judgment dismissing the cause of action for the Negligent Hiring of Dr. Goldweber. Similarly, defendants, FRANK S. COHEN, M.D. and FRANK S. COHEN, M.D. F.A.C.S., P.C. (Cohen defendants) move for summary judgment on the basis that plaintiff cannot establish a prima facie case and that no triable issue of fact exists. The Cohen defendants also move for summary judgment dismissing claims for vicarious liability based on Respondeat Superior and claims for the Negligent Hiring of Dr. Goldweber. Both the Carni defendants and the Cohen defendants seek summary judgment dismissing plaintiff's claims for lack of Informed Consent and Punitive Damages. Defendants Brian A. Goldweber, M.D. and Brian A. Goldweber, M.D., L.L.C. were discharged in bankruptcy and have not appeared in this action.
NOW, upon the foregoing and oral argument on September 22, 2011 and due deliberation had thereon, the motion for summary judgment is GRANTED to the extent of dismissing claims for lack of Informed Consent against all defendants, dismissing claims for Punitive Damages against all Defendants, dismissing claims against FRANK S. COHEN, M.D. and FRANK S. COHEN, M.D. F.A.C.S., P.C. based on Respondeat Superior and based on Negligent Hiring, and dismissing claims against ABBE J. CARNI, M.D. and ABBE J. CARNI, M.D., P.C. based on Apparent or Ostensible Agency; the motion is DENIED in all other respects.
This is an action sounding in medical malpractice wherein plaintiff claims that she was infected with HCV, the Hepatitis C virus, during a colonoscopy performed by defendant Frank Cohen, M.D. with anesthesia services provided by Abbe J. Carni, P.C. and administered by Brian A. Goldweber, M.D. Plaintiff claims that Dr. Goldweber broke sterile technique while administering anesthesia to her during the procedure by reusing a vial of contaminated anesthetic. Plaintiff also interposes a claim for lack of informed consent and seeks punitive damages against all defendants. Additionally, a claim for negligent hiring and vicariously liability is made against the Carni defendants and against the Cohen defendants.
Plaintiff, a 42 year old, presented to Dr. Cohen's office on May 2, 2005 for an elective colonoscopy. During the procedure, Dr. Goldweber administered a total of 160 mgs. of Propofol, an anesthetic agent. The colonoscopy revealed a normal colonic mucosa and no polyps or masses were found. Two years later, plaintiff received a letter from the New York City Department of Health (NYCDOH) advising her that she may have been exposed to Hepatitis B and/or Hepatitis C during the administration of anesthesia by Dr. Goldweber and recommended that she undergo blood testing. Bloodwork drawn on June 14, 2007 revealed a positive viral load for Hepatitis C, indicating the presence of Hepatitis C.
In March 2007 the NYCDOH commenced an investigation after a patient reported that he attributed his infection to treatment he received at the office of a nonparty gastroenterologist. The NYCDOH determined that the common nexus between the reporting patient and other infected patients was that they had received the anesthetic agent, Propofol, from Dr. Goldweber at that office. The NYCDOH widened its investigation to all offices where Dr. Goldweber had administered anesthesia, which included the office of Dr. Frank Cohen. Dr. Goldweber was later determined by the NYCDOH to have transmitted Hepatitis B and/or Hepatitis C to several patients through the improper administration of anesthesia by re-dosing hepatitis positive patients from a multi-dose vial of Propofol and then administering the anesthetic to subsequent patients from the contaminated vial. The final report of the NYCDOH investigation, however, did not specifically include findings with regards to the plaintiff or her date of treatment.
Dr. Goldweber's license was suspended pending the NYCDOH investigation and the matter referred to the Office of Professional Medical Conduct.
Unrelated to the Hepatitis investigation, on January 25, 1999, the New York State Board for Professional Medical Conduct charged Dr. Goldweber with three specifications of misconduct: Fraudulent Practice, Failure to Maintain Accurate Record, and Negligence on More than One Occasion. The Statement of Charges made against Dr.Goldweber states that he failed to meet acceptable standards in four instances. The first instance involved claims that he altered a patient's medical record to reflect that he administered a lower concentration of Bupivacine to the patient. The second instance involved administration of Succinylcholine to a patient with a documented history of adverse reaction to anesthesia and a family history of near lethal reaction to Succinylcholine. The third instance involved administration of Pavulon, a long-acting muscle relaxant to a patient without a secured airway. The fourth instance alleged that Dr. Goldweber failed to remain with the patient until it was determined that she was medically stable.
The Board issued Dr. Goldweber a Consent Agreement and Order effective April, 20, 1999. As penalty for Dr. Goldweber's acts of misconduct, the Order suspended his license to practice medicine in New York for three years, with the suspension stayed in its entirety, provided that he fully complied with the specified monitoring terms. Dr. Goldweber was required to complete a medical competency evaluation and training, and was to be supervised and monitored consistent with the monitoring terms. One of the monitoring terms mandated that Dr. Goldweber was allowed to practice medicine only "when supervised in his medical practice for a period of one year from the effective date of this order."(Carni Exhibit M). Additionally, "upon the completion of a one year period of practice supervision [Dr. Goldweber] shall practice medicine only when monitored by a licensed physician for the remainder of the period of stayed suspension." (Carni Exhibit M). Moreover, Dr. Goldweber's failure to fulfill the terms of the order would constitute misconduct and the order could be used as evidence in any future charges of professional misconduct.
Effective March 20, 2002, the Board issued Dr. Goldweber a second Consent Agreement and Order, penalizing Dr. Goldweber with censure, reprimand, and a $20,000 fine for his professional misconduct. The Board charged Dr. Goldweber with the specifications of practicing the profession fraudulently, conduct which evidences moral unfitness, and violating PHL § 2805(k). Dr. Goldweber's misconduct included making fraudulent statements in his applications to Ellenville Regional Hospital and to Medical Doctor Associates. He falsely answered "no" to the question of whether his license had ever been suspended or limited. He also claimed that his privileges had never been diminished at any hospital, even though on May 5, 1998 Rochester General Hospital limited his privileges by prohibiting him from providing anesthesia for major vascular cases, cerebral vascular cases, or to children under five years old. Further, the Board found that Dr. Goldweber misrepresented the terms of the consent agreement in an addendum he provided to Medical Doctor Associates. Lastly, the Board determined that in an interview by the Office of Professional Misconduct (OPMC) staff Dr. Goldweber fraudulently claimed that his privileges at Rochester General Hospital had never been limited.
Defendant, Dr. Carni, is a board certified anesthesiologist and president and sole shareholder of the defendant Abbe J. Carni, M.D., P.C. On or about July 2003, Dr. Carni sought to add another anesthesiologist to his practice and consulted an internet site where Dr. Goldweber and other anesthesiologists post to seek work. Dr. Carni testified at his deposition that he contacted and interviewed Dr. Goldweber for about 30 minutes to an hour. Dr. Carni later observed and evaluated Dr. Goldweber while he administered anesthesia at a surgical center before agreeing to use his services. After he was retained, Dr. Carni would, on occasion, continue to observe Dr. Goldweber.
Dr. Goldweber's curriculum vitae, submitted by plaintiff, contains a seven month gap in his employment history from April 2001 to November 2001. In his deposition, Dr. Carni replied that he did not question Dr. Goldweber about the gap in his employment prior to employing him. Nevertheless, Dr. Carni also testified that he would want to know about gaps in employment of a physician as it could be a sign of problem with the medical license.
Dr. Carni paid Dr. Goldweber a flat rate salary every two weeks of $12,000.00. The salary was not contingent on the number of procedures performed by Dr. Goldweber. Dr. Carni provided Dr. Goldweber with benefits, including paid vacation and discretionary bonuses. Dr. Goldweber never charged any patients directly and billings were generated and administered by Dr. Carni. Dr. Goldweber administered anesthesia using equipment required, furnished and paid for by Dr. Carni. Dr. Goldweber ordered additional anesthesia equipment using Dr. Carni's account. Dr. Carni directed Dr. Goldweber's work schedule. The terms of the relationship between Dr. Carni and Dr. Goldweber remained orally agreed until January 4, 2006, when it was reduced to a writing. The terms of the written agreement included the addition of a no competition clause.
Dr. Carni demonstrated to Dr. Goldweber the administration of Propofol using a needleless system, at the outset of their relationship. This system involves placing a spike into a vial and then drawing the anesthetic agent from the spike. It is undisputed that Dr. Goldweber used a needless system to administer anesthesia to the plaintiff.
In seeking summary judgment, the Cohen defendants argue that plaintiff has not offered any admissible evidence or testimony establishing the existence of a patient having been treated by Dr. Goldweber, prior to plaintiff, who had Hepatitis C or offered evidence that Dr. Goldweber re-dosed a patient with Hepatitis C, thereby contaminating the vial and, thereafter, the plaintiff. They argue that plaintiff cannot make out a prima facie case without the inadmissible NYCDOH report. Moreover, the Cohen defendants state that their "prima facie entitlement to summary judgment is based on the plaintiff's inability to make out a prima facie case of malpractice." (Cohen Aff in Support, footnote 1, p. 12). The Carni defendants make a similar argument, stating that without proof that Dr. Goldweber contaminated the vial of Propofol used to sedate the plaintiff, she is unable to raise an issue of fact to defeat summary judgment.
Defendant Dr. Carni submits the affidavit of expert, Dr. Pollack, a physician Board Certified in Internal Medicine and a Subspecialty Board in Infectious Diseases, who reviewed the investigation and findings of the NYCDOH. Dr. Pollack also reviewed documents including medical records and deposition testimony of those involved in this action. It is his opinion that there is no medical evidence to support the plaintiff's claim that she contracted Hepatitis C through Dr. Goldweber's acts or omissions during the colonoscopy. He states that there is no indication "in the record" that any patient, carrying the strain of virus that plaintiff carries, underwent a procedure at Dr. Cohen's office with anesthesia administered by Dr. Goldweber before the plaintiff was treated. This opinion, however, is based on the report of the NYCDOH, which the parties agree is inadmissible evidence. Dr. Pollack also opines that plaintiff most likely contracted the virus through a blood transfusion she received as a child. He opines that it was acceptable infection control practice to administer Propofol to multiple patients from a multidose vial, provided that no syringe or needle used to administer Propofol to a patient was re-inserted into the multidose vial. He states that a reasonable medical practitioner would have taken the necessary precautions and therefore would find no need to disclose the risk of transmission to a patient in obtaining the informed consent. The expert also opined that the transmission of HCV is not a foreseeable risk of a colonoscopy procedure.
Defendant Dr. Cohen submits the affirmation of H. Alan Schnall, M.D., a physician Board Certified in Internal Medicine with a sub-certification in gastroenterology. Dr. Schnall opines that the treatment rendered by Dr. Cohen was in accordance with accepted standards of medical practice and that such treatment did not proximately cause any injury to plaintiff. He states that there is no evidence that the plaintiff contracted the disease during the treatment by Dr. Cohen and that there is no evidence that Dr. Goldweber deviated from accepted standards of medical practice in connection with the administration of anesthesia to the plaintiff.
"On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment." Rebozo v. Wilen ,41 AD3d 457, 458 (2d Dept 2007); Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept 2009); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 (1986); Sheenan-Conrades v. Winifred Masterson Burke Rehabilitation Hosp. ,51 AD3d 769, 770 (2d Dept 2008); Thompson v. Orner ,36 AD3d 791, 792 (2d Dept 2007); DiMitri v. Monsouri, 302 AD2d 420, 421 (2d Dept 2003). The plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing. Stukas v. Streiter , 83 AD3d 18 (2d Dept. 2011).
Indeed, it is well established that when a party moving for summary judgment has not met its initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the motion should be denied without considering the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Fotiou v. Goodman ,74 AD3d 1140, 1141 (2d Dept 2010). Stukas v. Streiter ,83 AD3d 18 (2d Dept. 2011). The failure to make such showing requires denial of that branch of the motion, regardless of the sufficiency of the plaintiff's papers. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Post v. County of Suffolk ,80 AD3d 682, 685 (2d Dept 2011).
In their papers, the parties discuss the depth of the investigation and findings of the NYCDOH. All parties comment on the fact that the plaintiff is not included in the report and have differing perspectives as to the reason for this omission. In this regard, plaintiff claims that out of 4,490 letters sent to all patients treated by Dr. Goldweber between 2003 and 2007 only 796 patients went for testing. Nevertheless, the parties all agree that pursuant to New York Public Health Law § 10(2), the NYCDOH report is admissible only as to the findings of fact contained therein as presumptive evidence of those facts, but not the opinions or conclusions of law. See, Colao v. St. Vincent's Med. Ctr. , 65 AD3d 660, 661 (2d Dept. 2009); Cramer v. Benedictine Hosp., 301 AD2d 924, 927 (3d Dept. 2003); Maldonado v. Cotter, 256 AD2d 1073, 1074-75 (4th Dept. 1998); Cipriano v. Ho ,29 Misc 3d 952, (N.Y.Sup.,2010). However, as there is no reference to Ms. Von Stackelberg in the report, it is inadmissable evidence which cannot be used in this motion.
This summary judgment motion seeks, inter alia, to dismiss the cause of action sounding in medical malpractice premised on the acts and omissions of Dr. Goldweber. The defendants, however, do not make a prima facie showing of entitlement to summary judgment on this claim. Among other deficiencies, the affirmations of Dr. Pollack and Dr. Schnall are each conclusory and speculative and fail to establish a prima facie entitlement to summary judgement. See, Vincini v. Insel , 1 AD3d 351 (2d Dept. 2003). Although defendants brought up the argument that the report of the NYCDOH is inadmissable, their experts clearly rely on the report as a basis for their opinions; as such, the opinions are not based on admissible evidence. Further, even assuming the report was admissible, the affidavits are conclusory and speculative as no support is offered upon which the opinions rest.
Moreover, the experts' reliance on the inability to locate a source patient for plaintiff's contamination does not constitute a prima facie showing or warrants a granting of summary judgment. The defendants attempt to satisfy their burden by challenging plaintiff's ability to make a prima facie case, arguing that it entitles them to summary judgement. However, "a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." Velasquez v Gomez , 44 AD3d 649, 2d Dept 2007, quoting, George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992); Fotiou v Goodman ,74 AD3d 1140 (2d Dept 2010). The failure to make such showing requires denial of that branch of the motion, regardless of the sufficiency of the plaintiff's papers. Alvarez v. Prospect Hosp., supra at 324; Post v. County of Suffolk, supra at 685; Castro v. New York City Health and Hospitals Corp., 74 AD3d 1005 (2d Dept. 2010). Accordingly, defendants do not make a prima facie showing of entitlement to judgment as a matter of law and the burden does not shift to the plaintiff. See, Post v. County of Suffolk, supra. Summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a material and triable issue of fact. Jablonski v Rapalje ,14 AD3d 484, 486 (2005). Clearly, this is a case where numerous issues of fact exist which plaintiff is entitled to submit to a jury.
However, defendants have established, prima facie, their entitlement to summary judgment on the claims for lack of informed consent. Public Health Law § 2805 — d(1) defines lack of informed consent as "the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation."(emphasis added) Barnett v. Fashakin ,85 AD3d 832 (2d Dept. 2011). Here, defendants established that Dr. Cohen advised of the risks and benefits of the colonoscopy. Dr. Goldweber testified that he would discuss the risks of anesthesia with the patient. Although, the court notes that there is no evidence that Dr. Carni ever had contact with the plaintiff, he also testified that he would discuss the risks of anesthesia with patients. Further, Dr. Carni's expert, affirmed that the transmission of hepatitis is not a reasonably foreseeable risk of undergoing anesthesia and therefore the risk of transmission need not be disclosed to a patient prior to the procedure in order to obtain the patient's informed consent to proceed. Plaintiff claims that she should have been given informed consent regarding the possible transmission of Hepatitis C through anesthesia. However, inasmuch as a cause of action for lack of informed consent requires that reasonably foreseeable risks be disclosed and as the court finds that based on Dr. Pollack's affidavit the risk of contracting hepatitis is not be foreseeable risk of anesthesia, this claim must be dismissed. Accordingly, defendants are granted summary judgment as to the claims for lack of informed consent.
Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces "a high degree of moral culpability," or constitutes "willful or wanton negligence or recklessness." Lee v. Health Force, 268 AD2d 564, 564 (2d Dept. 2000); quoting Rey v. Park View Nursing Home, 262 AD2d 624, 627 (2d Dept. 1999); Hill v. 2016 Realty Associates ,42 AD3d 432 (2d Dept. 2007). Punitive damages can be imposed on an employer for the intentional wrongdoing of its employees only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant. Cleghorn v New York Cent. Hudson Riv. R. R. Co., 56 NY 44, 47-48 (1874); Craven v Bloomingdale, 171 NY 439 (1902); Stevens v O'Neill, 51 App Div 364 (1900), affd 169 NY 375 (1902); Gallo v. 800 Second Operating, Inc., 300 AD2d 537 (2d Dept. 2002). In this case, defendants Carni and Cohen have established prima facie entitlement to summary judgment dismissing punitive damages showing that they did not authorize consent to or participate in the conduct. Furthermore, there is no deliberate retention of an unfit servant. Plaintiff, on the other hand, does not raise an issue of fact to defeat this showing. Accordingly, punitive damages may not be maintained herein and are dismissed as against all defendants.
Defendant Dr. Carni argues that he cannot be personally liable in this action because he claims he did not render professional services giving rise to the alleged malpractice. He asserts that there is no evidence that he was present during the procedure, administered anesthesia and personally directed Dr. Goldweber in the administration of anesthesia to the plaintiff. He claims that he is merely the president and sole shareholder of the corporation and that he did not contract with Dr. Goldweber for anesthesia services and that this was procured by the corporation, Abbi J. Carni, M.D., P.C. He contends that on this basis the New York Business Corporation Law § 1505(a) shields him from personal liability. Although in their Reply papers the Carni defendants claim that Plaintiff conceded, on the authority of BCL § 1505(a), that Dr. Carni cannot be held personally liable for Dr. Goldweber's acts, mention of such concession is absent from plaintiff's papers.
A shareholder, employee, or officer of a professional corporation is liable only for negligent or wrongful acts " committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation"(Emphasis added) (Business Corporation Law § 1505[a]; see also, Ecker v. Zwaik Bernstein, 240 AD2d 360, 361, (2d Dept. 1997); Moller v Taliuaga, 255 AD2d 563 (2d Dept. 1998). Indeed, Business Corporation Law § 1505(a), which applies only to professional corporations, codifies the common-law rule that a shareholder is liable for those torts of the corporation in which he is a participant, supervised or controlled. Somer Wand, P.C. v. Rotondi, 219 AD2d 340 (2d Dept. 1996); See, e.g., Connell v. Hayden, 83 AD2d 30 (2d Dept. 1981).
Although it is undisputed that Dr. Carni did not participate in the administration of anesthesia to Ms. Von Stackelberg on May 2, 2005, he may be individually liable if he permitted negligent conduct by those under his supervision or failed to exercise proper control over such agents. See, Somer Wand, P.C. v. Rotondi, supra; Connell v. Hayden, supra. Plaintiff raised issues of fact regarding the relationship of Dr. Goldweber, Dr. Carni and Carni, P.C., including questions as to Dr. Carni's control in Dr. Goldweber's practice of anesthesiology and the nature of their relationship (as discussed below) which preclude summary judgment as to Dr. Carni, individually.
Summary judgment must be denied as to the Carni defendants on the issue of Respondeat Superior as questions of fact exist regarding the nature of the relationship with Dr. Goldweber. Although, Dr. Carni contends that neither he nor the P.C. are liable for the acts of Dr. Goldweber because Dr. Goldweber was an independent contractor, the determination of whether one is an independent contractor typically involves a question of fact concerning which party controls the methods and means by which the work is to be done. Crage v Kissing Bridge Ski Area, 186 AD2d 987, 988 (4th Dept 1992), lv denied 81 NY2d 702; Lazo v Mak's Trading Co.199 AD2d 165 (1st Dept. 1993). "Whether a person is an employee' or an independent contractor' is an ultimate fact to be determined from the evidence itself. It may be called a conclusion to be drawn from the contract itself, the attitude of the parties toward each other, the nature of the work and all relevant circumstances." (Emphasis in original). Felice v. St. Agnes Hosp., 65 AD2d 388, 396 (2d Dept 1986); see also, Nobel v. Ambrosio, 120 AD2d 715, 716 (2d Dept 1986) . Santiago v. Archer, 136 AD2d 690 (2d Dept.,1988); see also, Halkias v. Otolaryngology-Facial Plastic Surgery Associates, P.C., 282 AD2d 650 (2d Dept. 2001). Here, plaintiff raised issues of fact regarding the degree of control Dr. Carni had over Dr. Goldweber in the practice of anesthesiology, as well as the circumstances of an alleged employer/employee relationship between Dr. Goldweber and Dr. Carni and Abbe J. Carni. P.C. precluding summary judgment as to this claim. See, Zuckerman v. City of New York, 49 NY2d 557 (1980).
However, as to the Carni defendants, claims for vicarious liability based on apparent or ostensible agency must be dismissed and summary judgment granted.
In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill" (Dragotta v. Southampton Hosp. ,39 AD3d 697, 698). Thus, "[t]here are two elements to such a claim of apparent or ostensible agency" (id. at 698-699). "To establish the holding out' element, the misleading words or conduct must be attributable to the principal" (id. at 699). "To establish the reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal" (id.). "In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf" (id.). "In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all attendant circumstances . . . to determine whether the patient could properly have believed that the physician was provided by the hospital.' Sampson v Contillo , 55 AD3d 588, 590 (2d Dept. 2008), quoting Contu v Albert , 18 AD3d 692, 693, quoting Augeri v Massoff, 134 AD2d 308, 309).
For apparent authority to arise, there must be words or conduct communicated to the third party that the agent possesses authority to act on behalf of the principle. In this case, there is no such showing; furthermore, there is no evidence that Dr. Carni ever had contact with the plaintiff. Therefore, Dr. Carni and Abbe J. Carni, P.C. are granted summary judgment as to vicarious liability claims based on ostensible or apparent agency.
Plaintiff raised an issue of fact as to the claim that Dr. Carni negligently hired Dr. Goldweber. A prerequisite to sustaining a cause of action alleging negligent hiring or supervision is that the employer knew or should have known that an employee had displayed a propensity for the conduct which allegedly caused the injury. See, Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161, cert. denied 118 S.Ct 418 (1997) (Defendant could not be charged with a duty to investigate where there was no evidence of a propensity to sexually abuse children); see e.g., Jackson v. New York University Downtown Hosp. , 69 AD3d 801 (2d Dept. 2010) (Summary judgment was warranted for negligent hiring claims involving alleged sexual assault of patient by male nurse's aide during surgery preparation, absent showing that hospital knew or should have known of its employee's propensity for alleged injurious conduct.); Sandra M. v. St. Luke's Roosevelt Hosp. Center ,33 AD3d 875 (2d Dept. 2006) (Hospital could not be liable for negligent hiring to a patient who was allegedly sexually assaulted by nursing assistant in that the hospital had no reason to foresee the assistant's sexual misconduct; Ghaffari v. North Rockland Cent. School Dist. , 23 AD3d 342 (2d Dept.,2005) (Defendant presented evidence that it had no knowledge of the teacher's propensity for sexual misconduct).
Dr. Goldweber's resume contains a seven month gap in his employment which plaintiff argues was not investigated or, at minimum, questioned by Dr. Carni. Dr. Carni's reply is that inquiring into Dr. Goldweber's background would have merely revealed that he admitted to misconduct on more than one occasion. Dr. Carni adds that the misconduct involved the administration of anesthesia in a hospital setting and in more complex situations than those involved in this case and that none of the cases involved a breach of sterile protocol.
Dr. Carni's arguments, however, are unpersuasive. As noted above, summary judgment has been granted on negligent hiring claims upon a finding that the employer had no duty to investigate the hired individual where it was determined that the employee or independent contractor had no propensity for the action at issue. Here, an investigation into Dr. Goldweber's background would have revealed a pattern of negligence in the manner in which he administered anesthesia. Relevant to this determination is that each act of negligence cited against Dr Goldweber involved the improper administration of anesthesia, which is also the central issue in this matter. Thus, the court finds that plaintiff raised an issue of fact defeating summary judgment. Accordingly, summary judgment is denied as to the cause of action for negligent hiring in reference to and Dr. Carni and Abbi J. Carni, P.C.
The claims against the Cohen defendants based on Respondeat Superior and negligent hiring, must be dismissed and summary judgment granted as to these claims. Dr. Cohen demonstrated prima facie entitlement to judgment as a matter of law on these claims by establishing that Dr. Goldweber was not an employee of Cohen PC. See Dragotta v. Southampton Hosp. ,39 AD3d 697 (2d Dept. 2007); Sampson v. Contillo ,55 AD3d 588 (2d Dept. 2008). The Cohen defendants established that they did not hire or contract with Dr. Goldweber to provide anesthesia to its patients. Furthermore, Dr. Cohen, as a surgeon, did not control, supervise or direct Dr. Goldweber in the administration of anesthesia. Similarly the claim of negligent hiring fails as there is no evidence that Dr. Cohen hired Dr. Goldweber or that Dr. Goldweber was his employee. There is no basis for a claim against the Cohen defendants on either theory and summary judgment is granted to Dr. Cohen and Frank S. Cohen, P.C. as to these theories of liability.
It should be noted that the Cohen defendants did not seek summary judgment on the issue of ostensible agency nor did they address plaintiff's arguments on this issue. Thus, it is not before the court herein and remains a viable claim.
This constitutes the decision, opinion and order of this court.