McNulty v. City of New York , 742 N.Y.S.2d 242 ( 2002 )

OPINION OF THE COURT

Nardelli, J.P.

In this appeal, we are asked to determine whether, in the absence of a physician-patient relationship, defendant physicians owed plaintiff a duty of care as that duty was defined by the Court of Appeals in Tenuto v Lederle Labs. (90 NY2d 606), and later revisited by that Court in Cohen v Cabrini Med. Ctr. (94 NY2d 639).

Plaintiff Mary Ann McNulty, in December 1989, had been a registered nurse for three years and had been employed by defendant Montefiore Medical Center (Montefiore), in nursing or nursing-related capacities, since 1983. On December 24, 1989, at approximately 5:00 a.m., plaintiff received a telephone call from her friend Robin Reda’s boyfriend, Louis Eschevaria, requesting that plaintiff immediately proceed to Ms. Reda’s apartment because she was extremely ill. Ms. Reda is also a registered nurse and, at the time in question, was employed by defendant Jacobi Hospital (Jacobi), also known as Bronx Municipal Hospital Center.¹

Plaintiff arrived at Ms. Reda’s apartment at approximately 5:30 a.m. and noted that Ms. Reda was not oriented to time, person or place, was “unresponsive,” and appeared to be in a “stupor” on the floor. Plaintiff assessed Ms. Reda’s breathing, attempted to communicate with her, and became aware that Ms. Reda had been vomiting. During the period of time that plaintiff was attending to Ms. Reda, she was continually in close contact with her, often touching her and at times leaning only inches from her face.

Plaintiff, within five minutes of her arrival, called 911 and then phoned Ms. Reda’s father to apprise him of the situation. While waiting for the ambulance to arrive, plaintiff cleaned and dressed Ms. Reda and then, accompanied by Mr. Eschevaria, followed the ambulance in her car to Jacobi’s emergency room, arriving at approximately 6:00 a.m. Plaintiff subsequently spoke to the Emergency Medical Service (EMS) technicians who transported Ms. Reda in order to solicit their opinions as to what they believed was the nature of Ms. Reda’s condition. One of the technicians purportedly informed plaintiff of a possible diagnosis of either meningitis or a drug overdose. Plaintiff testified at deposition that at that time, she was aware that there were contagious and noncontagious types of meningitis, but was unsure of the mode of transmission for the contagious type.

Plaintiff maintains that after the technicians left, she spoke to a Dr. Beilin, the emergency room physician employed by Jacobi who was treating Ms. Reda. Plaintiff avers that when Dr. Beilin first came out to speak to Ms. Reda’s family members, he obtained a medical history for Ms. Reda, mentioned that a spinal tap had been performed, and echoed the EMS technician’s possible diagnosis of a drug overdose or meningitis. After hearing that Ms. Reda’s family intended to transfer Ms. Reda to defendant The Hospital of the Albert Einstein College of Medicine (Einstein), and that she was being treated for meningitis, plaintiff purportedly asked Dr. Beilin whether, in light of her exposure to the contagious disease, she needed medication or treatment. Plaintiff allegedly received no response from Dr. Beilin, “just like a shrug of his head. He didn’t say yes. He didn’t say no * * * He didn’t say I will answer questions later.” Plaintiff, significantly, testified that after receiving what essentially amounted to a non-answer from Dr. Beilin, she did not question any other personnel at Jacobi about meningitis tests, did not ask to be seen by a doctor in the emergency room, and participated in a conversation with Mr. Eschevaria during which they concluded that “we would ask the doctors when we got to Einstein, to see if they could give us an answer” to the questions left unanswered by Dr. Beilin. Dr. Beilin testified at deposition that he did not recall seeing or speaking with anybody associated with Ms. Reda in the emergency room on the date in question and, specifically, did not recall speaking to an individual named Mary Ann McNulty.²

Ms. Reda was thereafter transferred to Einstein some time during the morning of December 24, 1989, at which time she came under the care of attending physicians Dr. Robert Shimm and Dr. Herbert Tanowitz. Plaintiff also proceeded to Einstein, where she remained for approximately three hours before returning home. Plaintiff contends that after Dr. Shimm spoke to Ms. Reda’s family, she identified herself to Dr. Shimm and informed him that she had brought Ms. Reda to the Jacobi emergency room and had been with her the entire morning. Plaintiff maintains that she then asked Dr. Shimm if he felt she needed to be treated, to which he responded that no treatment was necessary. Dr. Shimm testified at deposition that he never spoke with plaintiff “to my knowledge.”

Plaintiff testified, with regard to Dr. Tanowitz, that she returned to Einstein the following day, December 25, 1989, to visit Ms. Reda and encountered Dr. Tanowitz in Ms. Reda’s room. Plaintiff contends that Dr. Tanowitz introduced himself, at which time Ms. McNulty explained that she and Ms. Reda were good, friends, that she had brought Ms. Reda to the hospital the day before, and that she had been in very close contact with Ms. Reda the previous day. Plaintiff testified that she then asked Dr. Tanowitz if she needed treatment, to which he replied that no treatment was required. Dr. Tanowitz denied speaking to plaintiff.

Dr. Shimm testified that after Ms. Reda’s arrival at Einstein, he contacted the infectious disease department at Einstein, and then telephoned Jacobi’s emergency room in order to ascertain whether they had contacted the Department of Health. Despite receiving an affirmative response, Dr. Shimm notified Einstein’s administrative officer of the day in order to follow up on the Department of Health notification in order to make sure it had been carried out.

Dr. Tanowitz testified that the infectious control nurse on duty at Einstein that day, Grace Hrynus, who is now deceased, contacted the infectious disease control nurse at Jacobi once Ms. Reda’s diagnosis of meningitis was confirmed in order to begin a joint effort to identify with whom Ms. Reda had come into contact. Dr. Tanowitz recalled that Ms. Hrynus identified approximately 25 individuals who needed prescriptions for prophylactic antibiotics and, toward that end, Dr. Tanowitz wrote a series of prescriptions for Ritempin, with the names left blank, to be completed and distributed by Ms. Hrynus. Plaintiff, however, was apparently never contacted by Ms. Hrynus or offered prophylactic medication.

Plaintiff maintains that on December 28, 1989, she awoke with a severe headache, joint and body pain and nausea and as a result, telephoned Dr. Shimm. Plaintiff claims that she reintroduced herself to the doctor, reminded him that she was Ms. Reda’s Mend and had brought her to the hospital, informed him that she was feeling very ill and inquired as to the type of meningitis that Ms. Reda had. Dr. Shimm purportedly explained that it was a very contagious type of meningitis and that if she was feeling ill, she should go to the hospital, after which he hung up on her. Plaintiff was subsequently diagnosed with bacterial meningitis (meningococcal meningitis), which allegedly left her deaf in one ear and hearing impaired with tinnitus in the other.

Plaintiff commenced the within action in February 1991, and, with leave of court, filed an amended complaint dated November 14, 1991, in which she alleged, inter alia, that defendants were negligent in their care and treatment of plaintiff by failing to provide prophylactic treatment to her while in the process of providing care to Ms. Reda.³ Defendants moved and cross-moved for summary judgment to dismiss the complaint asserting that a physician-patient relationship did not exist between defendant doctors and plaintiff and, in the absence of such a relationship, no duty was owed to plaintiff.

The motion court, in a decision and order entered June 8, 2000, dismissed the complaint as against Dr. Beilin and HHC concluding, inter alia, that no duty flowed from these defendants to plaintiff because plaintiff did not rely on what, essentially, was Dr. Beilin’s non-advice; that Ms. Reda had not, at the time, been definitely diagnosed as suffering from meningitis; and that she admitted in her deposition testimony that she left Jacobi with the intention of seeking medical advice and/or treatment at Einstein Hospital.

With regard to Doctors Shimm and Tanowitz, the motion court found that an issue of fact existed as to whether they knew that “plaintiff was relying on their medical advice that she required no treatment and, as a result, whether there was a breach of a duty to warn.” Finally, the motion court reasoned that although Montefiore and Einstein Hospitals could not be held vicariously liable for the acts of Doctors Shimm and Tanowitz, it would decline to grant summary judgment to Einstein, holding that it could be subject to liability for the acts of its nurse, Ms. Hrynus, who had been notified of plaintiff’s contact with Ms. Reda but failed to notify plaintiff that Ms. Reda had meningitis and needed prophylactic treatment, despite notifying others who were similarly situated.

On appeal, plaintiff has abandoned the argument that a physician-patient relationship existed with the defendant doctors, a point she refused to concede at nisi prius, and now contends that the defendant doctors owed her a duty of care despite the absence of a physician-patient relationship. Defendants, on the other hand, maintain that no such duty exists and that to find such a duty, under the facts presented herein, would improperly expand the orbit of duty owed by a doctor to the community at large. We disagree.

It is firmly established that “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case * * * [and the] [flailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Aetna Cas. & Sur. Co. v Island Transp. Corp., 233 AD2d 157).

In the matter at bar, a question of fact clearly exists as to whether plaintiff did or did not seek, and receive, medical advice and/or treatment from defendant doctors. The next step in our analysis, however, must be whether or not this disputed point of fact is relevant to the disposition of this case, for if defendant doctors owed no duty to plaintiff, as they claim, they may not be held liable in negligence (see, Palsgraf v Long Is. R.R. Co., 248 NY 339, 342; Turcotte v Fell, 68 NY2d 432, 437; Eiseman v State of New York, 70 NY2d 175, 187). Indeed, “[i]n the absence of duty, there is no breach and without a breach there is no liability” (Pulka v Edelman, 40 NY2d 781, 782; Petito v Verrazano Contr. Co., 283 AD2d 472, 473; Ellis v Peter, 211 AD2d 353, 355, lv dismissed 86 NY2d 885), or, as stated by Baron Pollock, and quoted approvingly by Chief Judge Cardozo, “[p]roof of negligence in the air, so to speak, will not do” (Palsgraf v Long Is. R.R. Co., supra at 341; see also, Cunllera v Randall, 196 AD2d 75, lv denied 84 NY2d 808).

Foreseeability of injury does not determine the existence of a duty and, unlike foreseeability and causation, which are generally factual issues to be resolved by the trier of fact, the existence and scope of an alleged tortfeasor’s duty is a legal issue for the courts to determine (Eiseman v State of New York, supra at 187; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226), and it is the responsibility of the courts, in fixing the orbit of duty, “ ‘to limit the legal consequences of wrongs to a controllable degree’ ” (Strauss v Belle Realty Co., 65 NY2d 399, 402, quoting Tobin v Grossman, 24 NY2d 609, 619). The parameters by which the orbit is to be defined, however, are numerous, fluid, subject to the influences of public policy, and present no clear, bright line definition by which the courts are to be guided.

In fixing the bounds of a duty, “not only logic and science, but policy play an important role” (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055; see also, Becker v Schwartz, 46 NY2d 401, 408). In Palka v Servicemaster Mgt. Servs. Corp. (83 NY2d 579), the Court of Appeals observed that:

“Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis * * *” (id. at 585; see also, De Angelis v Lutheran Med. Ctr., supra).

Chief Judge Cardozo, in Palsgraf v Long Is. R.R. Co. (supra at 344) instructed that “[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation.”

Professors Prosser and Keeton have opined that:

“The statement that there is or is not a duty begs the essential question—whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself.” (Prosser and Keeton, Torts § 53, at 357-358 [5th ed].)

The learned authors further opined that with regard to the undefined limits of what constitutes the scope of duty:

“ [I]t may be said that the courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to the duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others.” (Prosser and Keeton, Torts § 53, at 359 [5th ed].)

Finally, but by no means conclusively, the Court of Appeals has recently restated the requirement that “ ‘the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him’ ” (Lauer v City of New York, 95 NY2d 95, 100, quoting Johnson v Jamaica Hosp., 62 NY2d 523, 527).

Bearing the foregoing principles and guidelines in mind, we first note that, generally, recovery for a physician’s malpractice is predicated upon the existence of a physician-patient relationship, which is created when the professional services of a physician are rendered to, and accepted by another individual for the purposes of medical or surgical treatment (Lee v City of New York, 162 AD2d 34, lv denied 78 NY2d 863; Heller v Peekskill Community Hosp., 198 AD2d 265). In this matter, plaintiff concedes the absence of a physician-patient relationship, but claims that under ordinary principles of negligence, and under the particular facts of this case, defendant doctors owed her a duty of care. We agree as to Doctors Shimm and Tanowitz.

In Tenuto v Lederle Labs. (90 NY2d 606, supra), plaintiffs Dominick and Elizabeth Tenuto presented their five-month old daughter to defendant doctor Leroy L. Schwartz for a second dosage of an oral poliomyelitis vaccine manufactured by defendant Lederle Laboratories. Lederle Laboratories included in its packaging of the vaccine a description of the precautions which should be taken against exposing vulnerable adults to “contact” polio, which results from contact with the feces or saliva of an individual who had received that particular form of polio vaccination.

Plaintiffs alleged that Dr. Schwartz, who was aware Dominick Tenuto was about to undergo elective surgery, never inquired as to whether he had been previously vaccinated against polio, nor advised plaintiffs of the risk of incurring contact polio and the precautions necessary to prevent exposure, especially in light of the surgical wound which would result from Mr. Tenuto’s impending surgery. As a result, Mr. Tenuto was exposed to virulent polio viruses while caring for his daughter following his operation and was subsequently diagnosed as afflicted with polio, which rendered him a permanent paraplegic.

Plaintiffs brought a personal injury action, which the Supreme Court dismissed on Dr. Schwartz’s motion, on the ground that plaintiffs’ claims were based entirely on a failure to obtain the statutory informed consent mandated by Public Health Law § 2805-d, which claims could not lie because the Tenutos were not his patients. The Appellate Division affirmed for the same reason, but the Court of Appeals reversed, and found that the lower courts had read plaintiffs’ allegations too restrictively and that “under the circumstances of this case * * * a duty of reasonable care extended to plaintiffs despite the absence of a direct doctor/patient treatment relationship between them and Dr. Schwartz” (id. at 612).

The Court in Tenuto, in reaching its conclusion, referred to its decision in Eiseman v State of New York (70 NY2d 175, 188), and stated that “ ‘[i]n completing this particular report [of a physical examination of a patient], the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient. The physician did not, however, undertake a duty to the community at large’ ” (id. [emphasis in original]). The Court in Tenuto also opined that a limited expansion of a physician’s duty arises out of the existence of a special relationship, between either the physician and the injured nonpatient, or between the nonpatient and the patient, in those situations where the physician knew, or should have known, that the nonpatient was relying upon the physician’s exercise of due care (id., citing Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8).

In determining that a duty existed in Tenuto, the Court noted that another well-established predicate for extending a physician’s duty to third parties “is when the service performed on behalf of the patient necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient, whom the doctor knows or should know may suffer harm by relying on prudent performance of that medical service” (Tenuto v Lederle Labs., supra at 613; see also, Eiseman v State of New York, supra at 188; Miller v Rivard, 180 AD2d 331, 337-338; Restatement [Second] of Torts § 324A [c]).

In this matter, an issue of fact exists as to whether Doctors Shimm and Tanowitz, after confirming that Ms. Reda was suffering from a highly contagious form of meningitis, were approached by plaintiff, informed of her close contact with the patient and, when questioned, rendered the advice that no treatment was, in fact, necessary. While we remain acutely aware of the necessity of limiting a physician’s duty (see, generally, Albala v City of New York, 54 NY2d 269, 271-272), should the trier of fact resolve such issues in plaintiff’s favor, we find that, under the particular facts of this case, a duty runs from Doctors Shimm and Tanowitz to plaintiff. Such a finding does not create a duty to the community at large but, rather, a duty which would flow only to plaintiff, for the facts, as presented by plaintiff, clearly indicate that Doctors Shimm and Tanowitz knew or should reasonably have known that plaintiff was relying on them for advice with regard to her exposure to a highly contagious, dangerous disease. We make no such finding with regard to Dr. Beilin, however, as it is clear from plaintiffs own testimony that Dr. Beilin failed to give plaintiff a definitive answer when questioned, and that she did not rely on Dr. Beilin’s non-advice, as she intended to seek a medical opinion once she reached Einstein.

To the extent that defendants attach significance to the fact that none of the authorities cited by the Tenuto Court impose a duty of care outside the patient’s household, we again note that the Court of Appeals unequivocally stated that a physician’s duty of care may be extended to third parties when the service performed on behalf of the patient “necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient * * *” (Tenuto v Lederle Labs., supra at 613 [emphasis added]), and we perceive of no reason to refer to case law from another jurisdiction to clarify what the Court of Appeals has already made clear. Moreover, to the extent that defendants contend that no duty attaches simply because plaintiff was merely a close friend rather than a sibling, parent, or live-in aunt, to whom, in the same situation, a duty would apply, we decline to adopt such a proposition.

The Court of Appeals decision in Cohen v Cabrini Med. Ctr. (94 NY2d 639, supra) does not compel a different result. In Cohen, plaintiff-wife appealed the dismissal of her cause of action against her husband’s physician for personal injuries arising out of a failed surgical procedure which was intended to enhance the husband’s fertility. The husband’s sperm count, however, actually dropped after the improperly performed surgery and as a result, plaintiff-wife could only be impregnated through in vitro fertilization, and underwent nine such procedures before one was successful. The Court of Appeals affirmed the dismissal of the nonpatient wife’s claim for psychological harm attributable to her lost opportunity to achieve normal conception by her husband, as well as physical harm and pecuniary loss, and held that no duty could be imposed under the facts of that case based upon “a doctor-patient relationship between plaintiff and [the doctor] [for] [w]hile plaintiff did participate in her husband’s consultation with the doctor, no treatment or care of plaintiff was ever contemplated” (id. at 642 [emphasis added]).

The Court in Cohen, as noted by defendants, did distill the critical factors present in Tenuto, but did not endeavor to make those factors exclusive and, in recognizing the fact-sensitive nature of these cases, quoted the principle extending the duty of care to a third party, embodied in Restatement (Second) of Torts § 324A:

“[0]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person [or his things], is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care [to protect his undertaking], if* * *

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” {Id. at 643 [emphasis supplied].)

The Cohen Court then concluded that “[a]ny physical harm suffered by plaintiff from submitting to [in vitro fertilization] was the result of her voluntary election to undergo that additional procedure, over which [the doctor] did not and could not exercise any control. Contrastingly, in Tenuto, the infant patient’s parent did not contract polio because of any knowing, voluntary exposure to the disease but because the physician failed to warn and advise precautions against it. We decline to extend a physician’s duty of care to insure the conferral of a benefit upon the wife of a patient under these circumstances” (id. at 643-644 [emphasis added]).

In our view, the facts presented at bar fall comfortably within the guidelines established in Tenuto, which were reaffirmed in Cohen, as plaintiff herein clearly asserts that Doctors Shimm and Tanowitz, who were aware that Ms. Reda was suffering from a highly contagious form of meningitis, undertook, when questioned by plaintiff, to give her advice and that she consequently relied on that advice to her detriment.

As a result, we conclude that the motion court correctly denied summary judgment to Doctors Shimm and Tanowitz. The motion court also correctly concluded that Montefiore and Einstein may not be held liable for the purported malpractice of Doctors Shimm and Tanowitz, for it is well established that a hospital is not vicariously liable for the acts of an attending physician (Walter v Betancourt, 283 AD2d 223, 224; Georges v Swift, 194 AD2d 517, 518) absent certain circumstances not present herein. The motion court erred, however, in finding that Einstein may be held vicariously liable for the acts of its nurse, Grace Hrynus, who, after being informed by Ms. Reda of her contact with plaintiff, failed to notify plaintiff of the meningitis issue.

While it is true that “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all” (Glanzer v Shepard, 233 NY 236, 239; see also, Kingsland v Factory Mut. Sys., 145 AD2d 965, lv dismissed 74 NY2d 841), it is also true that there must be “misrepresentation by conduct and reliance thereupon” (Kirshenbaum v General Outdoor Adv. Co., 258 NY 489, 497). Here, Einstein undertook to voluntarily perform a good deed as a matter of internal policy and we find that a cause of action does not accrue to those who were inadvertently overlooked and to whom no misrepresentation was made.

Finally, we find that the motion court correctly concluded that a private cause of action in medical malpractice against a medical practitioner does not arise out of alleged violations of the Public Health Law (see, Landon v New York Hosp., 101 AD2d 489, 495-496, affd 65 NY2d 639).

Accordingly, the order of the Supreme Court, Bronx County (Douglas McKeon, J.), entered June 8, 2000, which, inter alia, granted the motion for summary judgment of defendants Montefiore, Einstein, Shimm and Tanowitz only to the extent of dismissing the second cause of action against Einstein, Shimm and Tanowitz and the entire complaint against Montefiore, and granted the cross motion for summary judgment of defendants Beilin and Jacobi in its entirety dismissing the complaint as against those defendants, should be modified, on the law, to the extent of granting summary judgment to Einstein, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant Einstein, dismissing the complaint as against it.

1 . Jacobi Hospital is part of New York City Health and Hospitals Corporation (HHC).

2 . In fact, Dr. Beilin, other than acknowledging a ‘Vague recollection” of Ms. Reda, recalled little else.

3 . Plaintiffs second cause of action, which was added in the amended complaint, asserts that defendants violated the New York State Sanitary Code (10 NYCRR 2.1 et seq.) which pertains to reporting, treating, warning and preventing the spread of communicable diseases.