Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.BriefN.Y.October 15, 2015Index No: 1834/11 7'0 be Arguecf illy: Joseph G. Dell, Esq. ('lime Cf\s!questecf: 30 :Minutes) Nassau County Clerk's Index Nos.: 1834/11,23966/09 & 8405/09 State of New York Court of Appeals APL -2014-00245 EDWIN DAVIS and DIANNA DAVIS, PfaintiJfs-Appe{fants, -against- SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, and ISLAND MEDICAL PHYSICIANS, P.C., Index No.: 23966/09 (])ejencfants-Cf\s!sponcfents. LORRAINE WALSH-ROMAN, y' -against- Pfaintijf-Cf\s!sponcfent, REGINA E. HAMMOCK, M.D., ROBERT DEAN, M.D., CHRISTINE DeLUCA, P.A., SOUTH NASSAU COMMUNITIES HOSPITAL, and ISLAND MEDICAL PHYSICIANS, P.C., IC' ,!) Index No.: 8405/09 (])ifencfants-Cf\s!sponcfents. EDWIN DAVIS, -against- P[aintijf, LORRAINE A. WALSH, (])ifencfant. BRIEF FOR PLAINTIFFS-APPELLANTS EDWIN DAVIS and DIANNA DAVIS DELL & DEAN, PLLC .Jlttorneys for P[aintijfs-.Jlpper[ants EDWIN DAVIS and DIANNA DAVIS 1325 Franklin Avenue, Suite 100 Garden City, N ew York 11530 Tel.: (516) 880-9700 Date: November 12,2014 Fax: (516) 880-9707 TABLE OF CONTENTS Preliminary Statement. ............................................................................................... 1 Jurisdiction to Hear the AppeaL .............................................................................. .4 Issue Presented ........................................................................................................... 4 Preservation of the Issue ............................................................................................ 5 Statements of Facts .................................................................................................... 8 Procedural History ................................................................................................... 11 Argument Point I When physicians or hospitals injure non-patient third-parties, the claims sound in negligence ................................................................................ 14 Point II A special relationship exists in this case that required Respondents to 'control' the patient. ............................................................................................. 21 (a) The 'control' doctrine does not require the 'legal authority to detain' when a patient voluntarily submits to a physician and hospital's authority .............................................................................. 22 (b) Respondents' specialized knowledge, fiduciary obligations, and contractual authority can form the basis of a special relationship activating the 'control' doctrine in certain contexts ...... 27 (c) A reasonable interpretation of Purdy evidences that' control' existed in this case ............................................................................... 3 7 Point III A duty should exist because Respondents create a risk of harm by violating professional duties and hospital protocols after they created a cognitive impairment in a patient by the affirmative acts of providing treatment and administering narcotic medications ................................................. .42 Point IV A duty should exist because Respondents provided 'comprehensive services' to the patient displacing the patient's ability to determine if she should drive ....................................................................................................... 69 Point V A duty should exist because Ms. Walsh detrimentally relied on the fiduciaries in a fiduciary relationship ...................................................................... 72 Point VI The Court should hold that Tenuta did not create an algebraic formula that requires a victim prove that a medical tortfeasor violated Restatement of Torts §§324A(a),(b), & (c) ............................................... 80 Point VII The Court should reject an analysis that a personal injury negligence duty has an intended beneficiary restriction ............................................................ 84 Point VIII A duty should exist because the class size of 'actual victims' is only one ............. 89 Point IX A finding of a duty advances significant state policies and interests ..................... 95 11 Point X High courts of sister states have found a duty under similar facts when medications are administered ................................................................................. 1 06 Point XI Based on the totality of the circumstances a third-party duty should exisL ........ 115 Point XII Appellant's amended complaint was not required to contain the exact magical words that Respondents 'possessed sufficient authority and ability to control Ms. Walsh's conduct' ......................................................... 119 Point XIII The within action should be consolidated with the two related actions ............... 121 Conclusion ............................................................................................................. 122 111 TABLE OF AUTHORITIES New York Precedent Alami v. Volkswagen 0/ Am., 97 NY2d 281 (NY 2002) ....................................... 102 Ash v. New York Univ. Dental Care, 164 AD2d 366 (1st Dept 1990) ................................................................. 29, 99,100 Au/richtig v. Lowell, 85 NY2d 540 (NY 1995) ....................................................... 28 Baker v. St. Agnes Hosp., 70 AD2d 400 (2d Dept 1979) ........................................ 29 Bazakos v. Lewis, 56 AD3d 15 (2d Dept 2008), rev'd on other grounds, 12 NY3d 631 (NY 2009) .................................................. 15 Bd. o/Managers o/Yardarm Beach Condo. v. Vector Yardarm Corp., 109 AD2d 684 (1 st Dept 1985) ............................................................................... 15 Braverman v. Bendiner & Schlesinger, Inc., 990 NYS2d 605 (2d Dept 2014) ............................................................................ 116 Calhoun v. Gale, 29 AD2d 766 (2d Dept 1968), affd, 23 NY2d 756 (1968) ...................................................................................... 16 Candelario v. Teperman, 15 AD3d 204 (1st Dept 2005) ........................................ 57 Carpenter v. Blake, 75 NY 12 (NY 1878) ......................................................... 59, 71 Chase Sci. Research v. NIA Group, 96 NY2d 20 (NY 2001 ) ................................. 15 Church v. Callanan Indus., 99 NY2d 104 (NY 2002) ................... .44, 48, 65, 66, 69 Clinton v. City o/New York, 140 AD2d 404 (2d Dept 1988) ................................. 70 Cohen v. Cabrini Med. Ctr., 94 NY2d 639 (NY 2000) ............................... 44, 62, 84 IV Crosland v. New York City Transit Authority, 68 NY2d 165 (NY 1986) ......................................................................................... 97 Cubito v. Kreisberg, 69 AD2d 738 (2d Dept 1979), affd, 51 NY2d 900 (1980) ....................................................................................... 15 DiPonzio v. Riordon, 89 NY2d 578 (NY 1997) ................................................ 65, 90 Dunn v. State, 29 NY2d 313 (NY 1971) ..................................................... 18, 38, 87 East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122 (2d Dept 2009) ................................................................................ 120 EBC 1, Inc. v. Goldman Sachs & Co., 5 NY3d 11 (NY 2005) ................................ 28 Eiseman v. State, 70 NY2d 175 (NY 1987) ........................................................... .47 Ernest v. Red Creek Cent. Sch. Dist., 93 NY2d 664 (NY 1999) ............................ .39 Espinal v. Melville Snow Contractors, 98 NY2d 136 (NY 2002) .................... 81, 84 Fleet Factors Corp. v. Werblin, 114 AD2d 996 (2d Dept 1985) ............................ 15 Fox v. Marshall, 88 AD3d 131 (2d Dept 2011 ) ................................................ 86, 90 Freeman v. St. Clare IS Hosp. & Health Ctr., 156 AD2d 300 (1st Dept 1989) ............................................................................... 70 Greenwald v. Zyvith, 23 AD2d 201 (2d Dept 1965) ............................................... 29 Guggenheimer v. Ginzburg, 43 NY2d 268 (NY 1978) ......................................... 120 Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222 (NY 2001 ) .................................. 23 Heard v. City o/New York, 82 NY2d 66 (NY 1993) ........................................ 72, 73 Herrgesell v. Genesee Hosp., 45 AD3d 1488 (4th Dept 2007) ............................... 57 v Holdampf v. A. C. & S, Inc, 5 NY3d 486 (NY 2005) ......................................... 22, 67 Homere v. State, 48 AD2d 422 (3d Dept 1975) ...................................................... 18 Hope v. Perales, 83 NY2d 563 (NY 1994) ............................................................ 19 Horton v. Niagara Falls Mem'l Med. Ctr., 51 AD2d 152 (4th Dept 1976) ................................................................................. 70 Januszko v. State, 47 NY2d 774 (NY 1979) ..................................................... 38, 87 Jones v. State, 267 AD 254 (3d Dept 1943) ...................................................... 18, 86 Killeen v. State, 66 NY2d 850 (NY 1985) ............................................................... 70 Kimmell v. Schaefer, 89 NY2d 257 (NY 1996) ................................................. 28, 72 Klein v. Bialer, 72 AD3d 744 (2d Dept 2010) ........................................................ 56 Kowalski v. St. Francis Hospital Ctr., 21 NY3d 480 (NY 2013) ........................... 23 Kulaga v. State, 31 NY2d 756 (NY 1972) .............................................................. 18 Landon v. Kroll Lab. Specialists, 91 AD3d 79 (2d Dept 2011), aff'd, 2 NY3d 1 (NY 2013) ...................................................................................... 14 Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1 (NY 2013) ............................... 44 Lauer v. City of New York, 95 NY2d 95 (NY 2000) ................................... 17, 72, 97 Leon v. Martinez, 84 NY2d 83 (NY 1994) ............................................................ 121 MacPherson v. Buick Motor Co., 217 NY 382 (NY 1916) ..................................... 85 Mandarin Trading Ltd. v. Wildens te in , 16 NY3d 173 (NY 2011 ) .......................... 28 Marmelstein v. Kehillat, 11 NY3d 15, 21 (NY 2008) ............................................. 31 VI Matter ofBezio v. Dorsey, 21 NY3d 93 (NY 2013) ................................................ 32 Matter of Small Litig, 109 AD3d 1212 (4th Dept 2013) ......................................... 29 McNulty v. City of New York, 295 AD2d 42 (1st Dept 2002), rev'd, 100 NY2d 227 (NY2003) .............................................................................. 73 McNulty v. City of New York, 100 NY2d 227 (NY2003) ........................ 2, 50, 69, 90 Meinhard v. Salmon, 249 NY 458 (NY 1928) ................................................. .30, 67 Metz v. State of New York, 20 NY3d 175 (NY 2012) ............................................. 88 Milliken & Co. v. Consolidated Edison Co., 84 NY2d 469 (NY 1994) .................. 89 Mirand v. City of New York, 84 NY2d 44 (NY 1994) ............................................ .41 Murphy v. Kuhn, 90 NY2d 266 (NY 1997) ............................................................. 29 Nelson v. New York City Health & Hospitals Corp., 237 AD2d 189 (1st Dept 1997) ........................................................................................................ 70 Padilla v. Verczly-Porter, 66 AD3d 1481 (4th Dept 2009) ............................... 28-29 Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579 (NY 1994) ........................................................................ 74, 84-85,91 People v. Boothe, 16 NY3d 195 (NY 2011) ............................................................ 19 People v. Crane, 214 NY 154 (NY 1915) ............................................................... 19 People v. Kelley, 141 AD2d 764 (2d Dept 1988) .................................................. 102 People v. Litto, 8 NY3d 692 (2007) ...................................................................... 1 02 Vll Purdy v. Pub. Adm'r of Westchester County, 72 NY2d 1 (NY 1988) ................................................................................ .l, 37,110 Pulka v. Edelman, 40 NY2d 781 (NY 1976) ........................................................... 17 Rattray v. State, 223 AD2d 356 (18t Dept 1996) .................................................... 87 Reis v. Volvo Cars ofN. Am., 2014 NY LEXIS 1526 (NY 2014) ................... 99-100 Santiago v. J 370 Broadway Associates, 264 AD2d 624 (18t Dept 1999), affd as mod., 96 NY2d 765 (NY 2001) ....................................... 15 Scalisi v. New York University Medical Center, 24 AD3d 145 (18t Dept 2005) ................................................................................. 16 Schuster v. New York, 5 NY2d 75 (NY 1958) ......................................................... 39 Spina v. Jack D. Weiler Hosp. of Albert Einstein ColI. of Med., 28 AD3d 311 (18t Dept 2006) ................................................................................. 56 Sommer v. Fed. Signal Corp., 79 NY2d 540 (NY 1992) ....................................... .45 Stiver v. Good &fair Carting & Moving, Inc., 9 NY3d 253 (NY 2007) ........................................................................................... 64 Stone v. William M Eisen Co., 219 NY 205 (NY 1916) ......................................... 29 Strauss v. Belle Realty Co., 65 NY2d 399 (1985) ............................................. 84, 89 Tenuto v. Lederle Laboratories, 90 NY2d 606 (NY 1997) ........................................................... 2, 17,27,74,80,104 Thomas v. Bethlehem Steel Corp., 95 AD2d 118 (3d Dept 1983) affd, 63 NY2d 150 (NY 1984) ................................................................................ 18 Weihs v. State, 267 AD 233 (3d Dept 1943) ..................................................... 18, 87 V III Williams v. State, 18 NY3d 981 (NY 2012) ...................................................... 38, 87 Williams v. Weatherstone, 23 NY3d 384 (NY 2014) ............................................. .41 Winters v. New York City Health & Hosps. Corp., 223 AD2d 405 (1 st Dept 1996) ............................................................................... 87 532 Madison Ave. Gourmet Foods Inc. v. Finlandia Ctr., Inc, 96 NYS2d 280 (NY 2001) ....................................................................................... 88 905 5th Associates v. Weintraub, 85 AD3d 667 (1st Dept 2011) ........................... 16 Out-of-State Precedent B.R. ex rel. Jeffs v. W, 2012 UT 11,275 P3d 228, 2012 WL621341 (Utah 2012) ......................................................................... .42, 113 Burroughs v. Magee, 118 SW3d 323 (Tenn 2003) ....................................... 112, 113 Cheeks v. Dorsey, 846 So.2d 1169 (Fla Dist. Ct. App. 2003) ...................... 107, 113 112 Coombes v. Florio, 877 NE2d 567 (Mass 2007) .................................... .42, 112 Gooden v. Tips, 651 SW2d 364 (Tex App 1983) ......................................... .l00, 113 Hoen v. United States of America, 217 FSupp2d 39 (Dist. Ct. Col. 2002) ............................................................................................... 1 07 Jarmie v. Troncale, 306 Conn. 578 (Sup Ct Conn 2012) ....................................... 57 Joy v. E. Me. Med. Ctr., 529 A2d 1364 (Me 1987) ............................................... 106 Kaiser v. Suburban Transp. Sys, 65 Wn2d 461,398 P2d 14 (Wash1965) ............................................................... .l13 Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill2d 507 (Ill 1987) ..................... 107 IX Leavitt v. Brockton Hospital, 454 Mass 37 (Mass 2009) ........................................ 20 McKenzie v. Hawaii Permanente Medical Group, Inc. 98 Haw 296 (Haw 2002) ............................................................. : ........... .42, 112, 113 Medtronic v. Lohr, 518 US 470 (US 1996) ............................................................. 97 Paroline v. United States, 134 S Ct 1710 (US 2014) .............................................. 97 Robinson v. Health Midwest Development Group, 2001 Mo. App. LEXIS 352 (Mo App 2001) ................................................... 20, 106 Shortnacy v. North Atlanta Internal Medicine, 252 Ga. App. 321 (Ga. App, 2d Div 2001) ........................................................... 107 Taylor v. Smith, 892 So.2d 887 (Ala 2004) ............................................. 17, 100, 106 Town of Plainville v. The Wheeler Clinic, Inc, 2008 Conn. Super LEXIS 3240 (2008) ................................................................... 18 Wharton Transport Corp. v. Bridges, 606 Sw2d 521 (Tenn 1980) ........................ 95 Webb v. Jarvis, 575 NE2d 992 (Ind 1991) ............................................................ 113 Welke v. Kuzilla, 144 Mich App 245 (1985) .................................................. .l9, 106 Wilschinsky v. Medina, 108 NM 511, 775 P2d 713 (NM 1989) ................... 106 ,114 Young v. Huntsville Hospital and Battles Services, 595 So. 2d 1386 (Ala 1992) ..................................................................................... 31 Zavalas v. State, 124 Or App 166,861 P2d 1026 (Or 1993) ................................ 113 x Secondary Sources Annas, J.D., M.P.H., "The Patient's Right to Safety - Improving the Quality of Care through Litigation against Hospitals," New England Journal of Medicine, N Engl J Med 354;19 at 2065, May 11,2006 ..................... 101 Bill Jacket to L 1975, ch.1 09 .................................................................................... 99 Corbin on Contracts, §43.2 ..................................................................................... 16 Furrow, The Patient Injury Epidemic: Medical Malpractice Litigation as a Curative Tool, 4 Drexel L. Rev 41 (2011 ) .................... 94, 95-96, 98 Goodnough and Zezima, Drivers on Prescription Drugs Are Hard to Convict, NY Times, July 25,2010,2010 WLNR 14776442 .............................. 96 Harper and Kime, The Duty To Control The Conduct Of Another, 43 Yale LJ 886 (1930) ........................................................................... 14, 25, 28, 39 Keshner, Suffolk D.A. Launches Vehicular Crimes Unit, NYLJ, February 21, 2012 .................................................................................................. 102 Kessler & Fahrenkopf, The New York State Medical Indemnity Fund: Rewarding tortfeasors who cause birth injuries by rationing care to their victims, 22 Alb LJ Sci & Tech 173 (2012) ....................... 104 Matthew, Implementing American Health Care Reform: The Fiduciary Imperative, 59 Buffalo L. Rev. 715 (2011) ..................................... 30 McKeon, New York's Innovative Approach to Medical Malpractice, 46 New Eng L Rev 475 (2012) .............................................................................. 104 McNulty v. City of New York, Plaintiff-Respondent's Brief, 2003 NY App Ct Briefs 42 (NY 2003) .................................................................... 64 Xl Mello et. aI., National Costs of the Medical Liability System, 29 Health Aff. 1569 (2010) ................................................................................... 104 Restatement 2d §281, cmt. (g) (1965) ..................................................................... 63 Restatement 2d §302A, cmt. G) (1965) ................................................................. 109 Restatement 2d Tort §303 cmt (d) ...................................................................... 39-40 Restatement Second Torts §315 (1965) ................................................................... 21 Restatement Second Torts §319 (1965) ................................................................ 1 07 Restatement Second §324A(a)(1965) ..................................................................... .46 Restatement Second §324A(b)(1965) ..................................................................... 69 Restatement Second §324A( c )(1965) ...................................................................... 73 Restatement Third Torts: Liability for Physical and Negligence Liability, §7 (2010); §7 cmt(1) ................................................................................. 52 Restatement Third Torts: Liability for Physical and Negligence Liability, §37, cmt. (c) (2012) ...................................................................... 60-61, 64 Restatement Third Torts: Liability for Physical and Negligence Liability, §37, cmt. (d) (2012)) ............................................................................... .43 Restatement Third Torts: Liability for Physical and Negligence Liability, §41 (2012) ...................................................................................... 108, III Restatement Third Torts: Liability for Physical and Negligence Liability, §41, cmt. (c ) .................................................................................. .111, 112 Restatement Third Torts: Liability for Physical and Negligence Liability, §41, cmt. (g) ............................................................................................. 88 XII Restatement Third Torts: Liability for Physical and Negligence Liability, §41, cmt. (h) (2012) ......................................................................... 95, 111 Restatement Third Torts: Liability for Physical and Negligence Liability, §41, cmt. (i) (20 12) ................................................................................ 111 Restatement Third Torts: Liability for Physical and Negligence Liability, §43(a) (2012) .......................................................................................... .46 Restatement Third Torts: Liability for Physical and Negligence Liability, §43(c) (2012) ............................................................................................ 74 Restatement Third Torts: Liability for Physical and Negligence Liability, §43, cmt. (d) (2012) ................................................................................. 15 Restatement Third Torts: Liability for Physical and Negligence Liability, §43, cmt. (h) (2012) ............................................................................ 86-87 Rodwin, Strains in the fiduciary metaphor: divided physician loyalties and obligations in a changing health care system, 21 Am. J. L. & Med. 241 (1995) ................................................................. .31, 98-99 Schull et. al., Annals of Emergency Medicine, March 2007, Vol 49, Issue 3, P 257-264, , The Effects to Low-Complexity Patients on Emergency Department Waiting Times .............................................. 112 Stiver v. Good &fair Carting & Moving, Inc, Appellant-Plaintiffs brief, 2007 NY App. Ct. Briefs 137 (NY 2007) ...................................................... 65 Wescott-Cafaro, Slipping Through the Cracks: Why Can't We Stop Drugged Driving, 32 W New Eng L Rev 33 (2010) ............................. 102-103 Statutory Authorities CPLR §4504 ............................................................................................................. 28 NYCRR §405.9(a)(1) ............................................................................................... 36 X 111 Preliminary Statement This is an action for personal injuries sounding in negligence. On March 4, 2009, a patient received treatment at an Emergency Department of a hospital. The treatment included administration ofI.V. narcotic medications. Prior to the treatment, the patient reported to the Emergency Depatiment staff that she drove her own motor vehicle to the hospital. Ultimately, the patient was discharged from the Emergency Department, allegedly in a disoriented state and without a warning not to drive. Nineteen minutes after discharge, the motor vehicle that the patient was driving crossed over double yellow lines when the patient became unconscious because of the medications administered, and the patient's vehicle crashed into an oncoming school bus traveling in the opposite lane of travel that had one occupant. The lower courts ruled that the hospital, and Emergency Department personal, had no legal duty to the school bus driver, plaintiff-appellant Edwin Davis, arising from negligent treatment of the patient. In the seminal case of Purdy v. Pub. Adm'r a/Westchester County, 72 NY2d 1 (NY 1988), a patient- who had a chronic natural medical syndrome that sometimes caused fainting spells- drove after leaving a nursing facility, and ultimately fainted while driving, causing injury to a third-party. Purdy found that the nursing facility did not have a duty to the injured third-party because the nursing facility did not have sufficient ability or authority to 'control' the patient. Purdy articulated the legal standard pertaining to 'control' as whether the patient had "no medical reason" "impeding her ability to leave Bethel [facility unaccompanied]." (Id. at 8.) Subsequent to Purdy, this Court has never defined, or expounded upon, Purdy's 'no medical reason' 'impeding her ability to leave' control standard in a non-psychiatric case. In the seminal case of Tenuta v. Lederle Lab, 90 NY2d 606,611-612 (NY 1997), this Court found a medical malpractice duty and negligence duty existed when a third-party parent was injured by a pediatrician's negligence in treating the parent's son. Yet, Tenuta was silent as to what legal factors pertained to the negligence claims as oppose to what legal factors pertained to the malpractice claims. Subsequently, no decision of this Court has clarified Tenuta's holding as to this important point. In the seminal case of McNulty v. City a/New Yark, 100 NY2d 227 (NY 2003), this Court found that third-party liability could exist in the medical context if "[ u ]nder the rule stated, the harm complained of by the third person arises because of the doctor's treatment of the patient." Id. at 233, interpreting Tenuta. Subsequent to McNulty, this Court has never defined what "arises because of the doctor's treatment" means, or its scope, or its intent. 2 The within appeal will allow the Court the opportunity to provide the lower courts reasonable clarification of the meaning of Purdy, Tenuto, & McNulty. Plaintiff-appellants Edwin Davis & Diana Davis (hereinafter collectively "Appellant") will offer reasonable interpretations of the above precedent supported by fundamental tort principles, societal expectations, and noble public policies, such as deterring drug impaired driving, regulating dangerous pharmaceutical drugs, enforcing fiduciary obligations, and compensating drug impaired driving victims. The medical industry will offer competing interpretations of Purdy, Tenuto, & McNulty supported by the antiquated concept of privity, and premised on the belief that protecting the financial interest of the medical industry and their insurers is a policy that transcends all other policies of New York, whether it be a singular policy or collaboration of policies. Ultimately, the Court must determine- if it has not already- if it will craft jurisprudence that emphasizes the principle of accountability, and allows victims access to the legal system, or craft jurisprudence that restricts victims' access to the legal system, creates less societal accountability, and resurrects the citadel of privity. 3 Jurisdiction to Hear the Appeal The action originated in Supreme Court, Nassau County. The Appellate Division order from which Appellant appeals, dated and entered July 2, 2014, affirmed the dismissal of Appellant's complaint and thus finally disposed of the action. (R. at II-VI.) On September 23,2014, this Court granted Appellant's motion for leave to appeal. (R. at I. Y This Court thus has jurisdiction to hear the case pursuant to CPLR §5602(a)(1)(i). Issue Presented Where a patient advises the Emergency Department staff that she arrived at the hospital by means of her own automobile, where a patient voluntarily submits to the authority of a hospital and its staff, where a patient does not leave the Emergency Department 'against medical advice,' where a hospital and hospital staff possess specialized knowledge that no one else possesses, where a patient detrimentally relies on fiduciaries, where a patient is administered Intravenous narcotics causing cognitive impairment impeding the patient's ability to self- protect, where affirmative acts of a hospital and hospital staff are professional duties that 'cause' a risk of harm to third-parties, where a hospital and hospital I "R." refers to references to the "Record." 4 staff are in the best position to prevent against the risk of harm, where a final harm is foreseeable, where a third-party is in no position to avoid an abrupt, cataclysmic accident, where only one third-patiy is injured in the relevant accident, where the existence of a duty is supported by policies such as detelring drug impaired driving, compensation drug impaired driving victims, regulating dangerous pharmaceutical drugs, and enforcing fiduciary obligations, did the lower courts err in concluding that the hospital and hospital staff do not have a legal duty to a foreseeable third party injured in a foreseeable motor vehicle accident when a cognitively impaired patient who was administered narcotic medications in an Emergency Department was discharged in a cognitively impaired state in violation of hospital protocols without a warning not to drive? Appellant submits that the question should be answered in the affirmative. The Order of the Second Department should be reversed. Preservation of the Issue In interposing a cross-motion for leave to amend the complaint to add a cause of action for general negligence at the trial level, Appellant argued (R. at 194-224;478-485) generally (1) that defendant-Respondents "negligently permitted a woman under the influence of heavy narcotics, which they provided, to operate an automobile ... "; (2) that defendant-Respondents negligently 5 supervised their staff and facilities; (3) negligently failed to warn the patient of the dangers of driving cognitively impaired, and defendant-Respondents negligently "allowed her [the patient] to leave the hospital"; (4) and defendant-Respondents failed to promulgate appropriate discharge protocols. (R. 204-205, ~11.) Appellant asserted that a third-party duty arose from a failure to warn, partially because of 'reasonable reliance.' (R. at 219, ~46.) Appellant's expert physician opined that emergency medicine physicians "are in a special position with specialized knowledge that neither the patient, or anyone who crosses the patient's path, may know." (R. at 211-212, ~34.) Although Appellant did not use magical words such as 'launching of harm' at the trial level, Appellant asserted that defendant-Respondents had a duty to Appellant "because they were professionals who directly caused a head-on collision with their affirmative actions ... [by] recklessly discharg[ing] her [the patient] without warning her of the driving impairments of the narcotics. This creates a special relationship between defendants and plaintiff." (R. at 206.) Correspondingly, Appellant asserted that the impetus behind the accident was the "high powered medications that the defendants administered to Ms. Walsh. The defendants here created the diminished cognitive and physical state and were the 6 sole cause of Ms. Walsh's diminished cognitive and physical state." (R. at 217- 218, ~44.) Appellant asserted that "defendants were in the best position to control the conduct of their patient Ms. Walsh ... until it was safe for her to enter the public and/or public roadways." (R. at 206-207.) Appellant asserted that defendant-Respondents had a duty to evaluate the patient's driving abilities prior to discharge. (R. at 21 0, ~31.) Appellant's expert physician opined that "emergency medicine physicians and staff, specifically, are required to evaluate whether a medical condition or administered medications have impaired a patient's driving abilities." (R. at 211-212, ~34.) Appellant asserted that the medical community had already established a professional duty "to assess patients' physical or mental impairments that might adversely effect driving abilities." (R. at 211-212.) Appellant asserted that the within case is distinguishable from most prior precedent- including psychiatric cases- because the patient "hoped to stay in the hospital. At all times Ms. Walsh [the patient] was acquiescing to the defendant- doctors' expertise and directives. Unfortunately, the defendant-doctors ordered her discharged. That decision and that exercise of control by the defendant(s) [led to 7 the accident]. .. " (R. at 213, ~35.) See, R. at 219-220, ~46, citing Restatement 2d Torts §319. Indeed, Appellant asserted that defendant-Respondents had the "necessary authority or ability to exercise such control over" the patient Ms. Walsh. (R. 214- 215, ~39; 218, ~45.) Appellant asserted that defendant-Respondents took "direct charge of Ms. Walsh's person, and her mind." (R. at 219,~46.) Statement of Facts On March 4, 2009, patient Ms. Lorraine Walsh sought treatment at defendant South Nassau Communities Hospital complaining of abdominal pain. (See, Walsh's South Nassau chart at R. at 231-250.) In the Emergency Department, Ms. Walsh was treated by defendant-Respondents Regina E. Hammock and Christine DeLuca, who were employed by defendant Island Medical Physicians, P.C. (hereinafter collectively "Respondents"). Ms. Walsh sought treatment for pain in her abdomen, presumably caused by an ovarian cyst. (R. at 233.) Upon initial physical examination, it was noted that Ms. Walsh was alert and neurologically intact, although anxious. (Id.) While at the hospital, Ms. Walsh was administered Toradel 30mg IV at 8:07 a.m.; Dilaudid .5mg IV at 11 :00 a.m.; and Ativan .5mg IV at 11 :00 a.m. (R. at 8 235.) Ms. Walsh reported a history of hypersensitivity to morphine, with morphine turning her 'crazy.' (Id.) According to Alan L. Schechter, M.D., Assistant Professor of Emergency Medicine at Albert Einstein College of Medicine, "Dilaudid is an opoid narcotic painkiller that is a Schedule II Controlled Opoid Agonist. It is a very powerful narcotic that inhibits pain pathways in the central nervous system. Dilaudid has two to eight times the painkilling effect of morphine. It can certainly cause confusion, altered mental status, and delirium in a patient." (R. at 276-278). Ativan is a high-potency 2-hydroxy benzodiazepine drug that has all five intrinsic benzodiazepine effects: anxiolytic, amnesic, sedative/hypnotic, anticonvulsant, and muscle relaxant. Ativan is sometimes used to treat acute seizures, insomnia, anxiety, status epilepticus, and sedation of aggressive hospital patients. (R. at 279.) The known side-effects of Ativan include sedation, dizziness, weakness, unsteadiness, and disorientation. (R. at 251; 279-280.) The generic form of Dilaudid is Hydromporhone. It is an opium derivative. The generic form of Ativan is Lorazepan. Both Hydromporhone and Lorazepan are controlled substances pursuant to N.Y. Pub. Health Law § 3306. The package label for Dilaudid states that patients should be cautioned not to drive. (R. at 279- 280.) 9 Notably, Ms. Walsh reported to the Emergency Department staff that she arrived at the hospital via her own automobile. (R. at 233.) This entry is in a part of the chart that is typed out, and appears with other background information customarily obtained from every patient. At 12:30 p.m., Ms. Walsh was discharged. (R. at 241.) This is approximately 1 and Yz hours after commencement of the administration of both Dilaudid and Ativan at 11 :00 a.m. Notably, Ms. Walsh did not leave the hospital against medical advice. At discharge, Ms. Walsh was provided instructions pertaining to only ovarian cysts and abdominal pain- and nothing pertaining to the medications Respondents administered or the medications' effects. (Id. at 236-238.) At approximately 12:49 p.m., nineteen minutes after discharge, Ms. Walsh was driving her vehicle when she became unconscious as a result of the medications administered at the hospital, and she drove her vehicle across the double yellow lines, crashing into an oncoming school bus traveling in the opposite direction of travel, which was operated by plaintiff-appellant Edwin Davis. (See, Police RepOli at R. at 225.) As a result of the head-on collision, Appellant sustained catastrophic injuries, including multiple skull fractures with a resultant traumatic brain injury; 10 need for multiple staples for closure of head wounds; exacerbation of pre-existing Multiple Sclerosis that had been asymptomatic prior to the accident; reoccurring dizzy spells; and multiple disc herniations and bulges. (R. at 195). Appellant has never been able to return to gainful employment due to his injuries. Procedural History On or about February 3, 2011, Appellant instituted the within action against Respondents. (R. at 344-354.) In the within action, Appellant initially alleged, generally, that the Respondents committed medical malpractice (1) by releasing Ms. Walsh from South Nassau Communities Hospital in an impaired and drugged state, and (2) by failing to warn Ms. Walsh of the driving related effects of the medications that they administered. On or about January 25, 2012, Respondents interposed motions to dismiss pursuant to CPLR §3211(a)(7) alleging that Appellant failed to state a cause of action for medical malpractice. (R. at 14-21; 131-136.) On February 15,2012, Appellant cross-moved to amend the complaint nunc pro tunc to allege a cause of action for general negligence against Respondents, and cross-moved to consolidate the within action with two related actions. (R. at 191-224.) 11 As to the two related actions, Appellant previously instituted an action against Ms. Walsh. (R. 288-293.) Appellant alleged that Ms. Walsh was negligent in driving her automobile. Ms. Walsh previously instituted an action against defendants Regina E. Hammock, M.D., Robert Dean, M.D., Christine DeLuca, P.A., and South Nassau Communities Hospital. (R. at 300-313.) Ms. Walsh alleged that Respondents committed medical malpractice in treating her in the Emergency Department prior to the automobile accident, thereby proximately causing the automobile accident. These two actions were joined for trial. (R. at 199.) By decision dated July 10,2012, the Supreme Court, Nassau County (Sher J.) granted Respondents' motions to dismiss, and denied Appellant's cross-motion to amend the complaint and consolidate. The Supreme Court held that Appellant "failed to raise a triable issue of fact as to the duty owed by defendants to plaintiffs or whether a special relationship existed between them." (R. at X-XVIII.) On September 11, 2012, defendant-Respondents Hammock, DeLuca, PRA- C and Island Medical Physicians, P.C. entered judgment in the within action against Appellant. (R. at V-VII.) On July 2, 2014, the Second Depatiment affirmed the Supreme Court's dismissal, and held that Appellant's amended complaint was patently devoid of 12 merit because it "failed to allege that the defendants possessed sufficient authority and ability to control Walsh's conduct so as to give rise to a duty to protect Davis, a member of the general public ... [and] the plaintiffs' remaining contentions either are without merit or need not be reached in light of our determination." (R. at II-IV.) On September 23,2014, this Court granted Appellant's motion for leave to appeal. (R. at 1.) Currently, Appellant's action against Ms. Walsh, and Ms. Walsh's action against Respondents are on the trial calendar in Supreme Court, Nassau County. In or about August 2014, a third-party suit was interposed by Ms. Walsh against Respondents in the Davis v. Walsh action. Because of the third-party suit, Respondents will have to pay counsel, litigate, undergo a trial, and disprove frivolous or meritorious allegations regarding their treatment of Ms. Walsh, irrespective of what occurs on this appeal. If the Second Department's decision stands, then the individual who drove impaired on drugs is also the individual who will determine whether third-party victims have access to compensation from other tortfeasors. If the Second Department's decision stands, then the common law will provide a joint tOlifeasor with more legal protection and power than a victim. Better said, Appellant can 13 only recover against Respondents if the woman who drove impaired on drugs into Appellant's bus leading to Appellant's traumatic brain injury allows Appellant to recover against Respondents. If the Second Department's decision stands, at a trial in this matter, ajury could find that the accident was proximately caused by Respondents' actions, and find Ms. Walsh was 0% at fault, and find that Respondents were 100% at fault. If this occurs, then Ms. Walsh will recover for her injuries, while Appellant recovers nothing. If this occurs, then no one is civilly liable to victims of drug impaired driving in New York when medical tortfeasors cause the accident. The courts will deem drug impaired driving unfortunate, and victims of drug impaired driving unlucky, but necessary for the operations of the medical business of New York. Point I: When physicians or hospitals injure non-patient third- parties, the claims sound in negligence. Professionals may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties. Landon v. Kroll Lab. Specialists, 91 AD3d 79,83-84 (2d Dept 2011), ajJ'd, 2 NY3d 1 (NY 2013). Doctors may be responsible to control the conduct of their patient to prevent harm to a third party through a 'joint enterprise' formula. Harper and Kime, The Duty To Control The Conduct Of Another, 43 Yale LJ 886, 897 (1930). 14 "Because privity of contract no longer confines the scope of tort duties, an actor who creates a risk of harm while performing under a contract is subject to a duty of reasonable care to others." Restatement 3rd Torts: Liability for Physical and Negligence Liability, §43, cmt. (d) (2012). In Bazakos v. Lewis, 56 AD3d 15 (2d Dept 2008), rev'd on other grounds, 12 NY3d 631 (2009), the Second Department stated: Malpractice in the statutory sense describes the negligence of a professional toward the person for whom he rendered a service, and ... an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship. On the other hand, the wrongful conduct of the professional in rendering services to his client resulting in injury to a party outside the relationship is simple negligence. Id. at 17-18, citing, Cubito v. Kreisberg, 69 AD2d 738, 742 (2d Dept 1979), affd, 51 NY2d 900 (l980). See, Chase Sci. Research v. NIA Group, 96 NY2d 20, 25 (NY 2001 )(Describing malpractice as "misfeasance toward clients"); Bd. of Managers of Yardarm Beach Condo. v. Vector Yardarm Corp., 109 AD2d 684,685-686 (lst Dept 1985); Fleet Factors Corp. v. Werblin, 114 AD2d 996, 998 (2d Dept 1985); Santiago v. 1370 Broadway Associates, 264 AD2d 624 (lst Dept 1999), affd as mod., 96 NY2d 765 (NY 2001) ("Malpractice is the negligence of a professional toward a person for 15 whom a service is rendered"); 905 5th Associates v. Weintraub, 85 AD3d 667, 668 (1st Dept 2011). The above precedent is consistent with horn-book concepts of contract and tort law. According to one leading treatise, "[t]ort law focuses on unreasonable risks that prove to be the proximate cause of personal injury or injury to property other than the product. Contract law requires an agreement of the parties in which each party induces expectations of future performance in the other." Corbin on Contracts, §43.2. (Emphasis Supplied.) In the medical context, the patient's body is the subject matter of the transaction. When harms occur to the patient's body, it is reasonable that such claims sound in contract and/or malpractice. In contrast, Appellant's body was not the subject of the transaction, or the 'product' of the transaction, and the claims do not sound in contract and/or malpractice. Cf Scalisi v. New York University Medical Center, 24 AD3d 145 (1st Dept 2005)("It is also well-established New York law that where a cause of action lies in medical malpractice, a breach of contact action is legally redundant"); In Accord, Calhoun v. Gale, 29 AD2d 766 (2d Dept 1968), affd, 23 NY2d 756 (1968). This Court is the institution with the power to detennine if Appellant possesses common law claims. "The common-law duty of reasonable care to 16 those within the ambit of foreseeable danger required no buttressing by legislative enactment; nor does the absence of such legislation in the present instance exclude the possibility of liability." Pulka v. Edelman, 40 NY2d 781, 787 (NY 1976)(Wachtler J. )(Dissenting). "While the Legislature can create a duty by statute, in most cases duty is defined by the courts, as a matter of policy." Lauer v. City a/New York, 95 NY2d 95,100 (NY 2000). In Tenuta v. Lederle Lab., 90 NY2d 606 (NY 1997), this Court held: Dr. Schwartz moved to dismiss the claims against him on the ground that they were based entirely on a failure to obtain the statutory informed consent mandated by Public Health Law § 2805-d--claims which would not lie because the Tenutos were not his patients . .. The courts below too restrictively read plaintiffs' allegations contained in the complaint, bill of particulars and other papers. A statutory cause of action pursuant to Public Health Law § 2805-d was not the only cognizable legal theory upon which plaintiffs' allegations rested. Both expressly and by fair implication, plaintiffs have alleged that Dr. Schwartz owed them a duty of care based on common-law principles of ordinary negligence. (Id. at 611-612.) (Emphasis Supplied.) A finding that Appellant's claims sound in malpractice would require the Court overturn Tenuta. A finding that claims pertaining to non-patients sound in malpractice is contrary to the findings of a majority of sister states that have analyzed the issue. See, Taylor v. Smith, 892 So.2d 887, 892-893 (Ala 2004); 17 Town of Plainville v. The Wheeler Clinic, Inc, 2008 Conn. Super LEXIS 3240 (2008)(Concluding Connecticut's medical malpractice statute would not cover claims by non-patients, consistent with the holdings of Florida; Louisiana; and Indiana). Notably, the legislative history of New York's relevant malpractice statutes does not reference lawsuits by non-patient third parties. This is so even though when the extensive malpractice legislation was enacted in 1975, New York had established a common law negligence duty for non-patients in the psychiatric context, yet the Legislature still did not reference non-patients' rights/causes of actions in the legislation. Some of the pre-legislation precedent was Kulaga v. State, 31 NY2d 756 (NY 1972); Dunn v. State, 29 NY2d 313 (NY 1971); Weihs v. State, 267 AD 233 (3d Dept 1943); Jones v. State, 267 AD 254, 255 (3d Dept 1943); Homere v. State, 48 AD2d 422, 424 (3d Dept 1975). It would be unrealistic for Respondents to assume that the Legislature was not aware of these holdings. Indeed, the Legislature was aware of these holdings, and still did not include legislation about non-patient rights in the 1975 legislation. See, Thomas v. Bethlehem Steel Corp., 95 AD2d 118, 120 (3d Dept 1983), affd, 63 NY2d 150 (1984) ("A fundamental rule of (statutory) construction provides that the 18 Legislature, when enacting an amendment or new legislation, is presumed to know and be aware of the law existing at that time and does not act in a vacuum.") In contrast to Alabama, Florida, Louisiana, Connecticut, and Indiana, in Welke v. Kuzilla, 144 Mich App 245 (1985), the Michigan Court of Appeals denied a physician's motion to dismiss the complaint of a non-patient driver, yet, Welke deemed the claims as sounding in malpractice coming under the jurisdiction of the state's malpractice statute "for reasons of public policy." (Id. at 253.) Welke's reading of the Michigan malpractice statute- and arguably rewriting of the statute- is contrary to New York precedent pertaining to statutory interpretation. See, People v. Boothe, 16 NY3d 195, 198 (NY 2011)(Pigott, l)("It is well settled that courts are not to legislate under the guise of interpretation"); Hope v. Perales, 83 NY2d 563, 575 (NY 1994) (Kaye, C.J.)("It is not the role of the courts to pass upon the wisdom of the Legislature's policy choice, even though there may be differences of views ... "); People v. Crane, 214 NY 154,172 (NY 1915)(Cardozo, J.), citing, Missouri, Kansas & Texas Ry. Co. v. May, 1994 US 267,270 (Holmes, J.). The classification of Appellant's claim as negligence or malpractice should not have much effect on the ultimate duty analysis because the same global, intensive analysis applies irrespective of the classification of the claim. This is 19 especially so since no legislative act in New York has ever substantively restricted the scope of a physician's, or individual's, legal duty to others, and malpractice statutes have merely addressed procedural issues. Yet, admittedly, the classification of the claim will effect statute of limitations and attorney fees, which makes the determination important in its own right irrespective of the duty analysis. To read the medical malpractice statute so its specialized procedural requirements extend to situations it was not intended to apply to is similar to expanding the Dram Shop Statute to apply to situations it was not intended to apply to. If the State's malpractice statute's specialized procedural rules should apply to non-patient cases/negligence cases on 'policy grounds,' then the State's policies that underlie the Dram Shop Act should support the finding of a duty. See, Robinson v. Health Midwest Development Group, 2001 Mo. App. LEXIS 352 (Mo App 2001 )(Finding for the existence of a third-party duty in an identical case- as herein- partly because the state's Dram Shop Statute codified the policies of the state pertaining to highway travel and highway safety); But see, Leavitt v. Brockton Hospital, 454 Mass 37 (Mass 2009)(Finding against a duty to 'control' when an impaired patient left a hospital- to walk home- leading to a motor vehicle 20 accident, and rejecting the argument that the state's Dram Shop Statute supported a duty because the Dram Shop Statute did not require barkeeps to 'control', but instead only to stop serving alcohol.) Objectively, neither the Dram Shop Statute nor the medical malpractice statutes are controlling, although the policies that underlie both are probably relevant to the issues in this case. 2 Point II: A special relationship exists in this case that required Respondents to 'control' Ms. Walsh. Restatement Second of Torts §315 (1965) states: There is no duty so to control the conduct of a third person as to prevent him from causing harm to another unless (a) a special relationship exists between the actor and the third person (intermediary) which imposes a duty upon the actor to control the third person's conduct, or (b) ... In the case at bar, a special relationship existed between Respondents and Ms. Walsh that required Respondents to 'control' Ms. Walsh in such a manner so that Ms. Walsh was not discharged creating an inherently dangerous situation for herself and for others. 2 Assuming arguendo the Court deems Appellant's claims as sounding in malpractice, then all arguments Appellant asserts regarding a negligence duty would apply to the malpractice duty. 21 (a) The 'control' doctrine does not require the 'legal authority to detain' when a patient voluntarily submits to a physician and hospital's authority. In their Second Department briefs, Respondents asserted that' control' in the medical context for purposes of a special relationship analysis- always- requires that medical tortfeasors have legal authority to detain a patient, even if the patient voluntarily submits to Respondents' authority. Respondents' argument is based on the fact that the' control' doctrine in the medical context has typically arisen in cases with psychiatric patients, and the State's mental hygiene laws allow hospitals, in certain circumstances, to legally detain psychiatric patients. Therefore, according to Respondents, a plaintiff must prove- in all contexts with all patients- that a physician or hospital had the legal authority to detain a patient. See, Hammock Brief at 17-18 ("It is the authority to detain the patient that determines control"); South Nassau Brief at 7-11 ("Defendants had no power of control over Walsh ... She was a patient in the emergency department, not a lock- down psychiatric unit.") This Court has never addressed the legal standard for the control doctrine when a patient voluntarily submitted to a physician or hospital's authority. As importantly, in Holdampfv. A.C & S, Inc, 5 NY3d 486 (NY 2005), the Court did not articulate the 'control' standard in terms of the 'ability and 22 authority' language utilized in Purdy, but instead Justice Read articulated the 'control' standard as determining whether the relevant relationship "encompasses defendant's actual control of the third person's actions." Id. at 493-494, quoting, Hamilton v. Beretta US.A. Corp., 96 NY2d 222,232 (NY 2001). It seems that the 'actual control' test is merely a more pragmatic way to articulate the more abstract Purdy 'ability and authority' test. For example, if 'actual control' exists, then there is sufficient 'ability and authority' to 'control'. If there is not sufficient' ability and authority,' then 'actual control' will not exist. In the case at bar, Ms. Walsh voluntarily submitted to Respondents' authority when she requested treatment from Respondents. Respondents accepted that power by treating Ms. Walsh. Ms. Walsh did nothing to question that authority. In contrast, in psychiatric cases, the psychiatric patient is typically not voluntarily submitting to the hospital's 'authority,' so the Court must go to the next level of analysis- the more difficult level of analysis- which is whether there was 'legal' authority to detain since no voluntary submission to the authority occurred. Cj, Kowalski v. St. Francis Hospital Ctr., 21 NY3d 480 (NY 2013). Yet, in this case, since Ms. Walsh voluntarily submitted to Respondents' authority- and would have done anything they told her to do- the Court need not analyze whether 'forcible' control could have existed. Indeed, the 'control' issue 23 in this case is much more simple, and more straight forward than in the psychiatric cases. This is not a case where Respondents did not have control of Ms. Walsh. Nor is this a case where Respondents 'could' have controlled Ms. Walsh, but 'actual control' never commenced/existed (as is sometimes the situation in other contexts). Instead, this is a case where Respondents possessed and utilized 'actual control,' but then, Respondents prematurely terminated the 'actual control' (and not the patient terminating the 'control' as occurs in the psychiatric cases). This is a case of misuse of 'control' by the medical tortfeasors. In their briefs, Respondents will propose a modification to the 'actual control' standard. Respondents will propose a standard that requires 'actual control', and 'authority to legally detain'- even when the legal detention is factually pointless, or a legal fiction, because the patient voluntarily submits. It is one thing to evaluate for the authority to detain- as an application of the 'authority/ability' /'actual control' test in the psychiatric context- and quite another thing to make the authority to detain the basic rule oflaw for' control' in all medical contexts. Basically, Respondents will argue that the application of the rule in the most severe circumstances means that the rule requires the identical application in all contexts (therefore transforming the application into the new 24 rule.) This is flawed reasoning. Hypothetically, if the basic rule is a police officer must use all force necessary to protect herself when arresting someone, and the application of the rule requires the officer to shoot off her gun when faced against violently aggressive perpetrators, then this does not mean that shooting off of a gun is necessary to arrest non-violent individuals, or mean the basic rule is transformed into an officer must always shoot off her gun in all arrest contexts. The 'ability/authority'/'actual control' analysis may require the ability to detain in the psychiatric context, yet this does not mean detention is required in all other medical contexts. The control doctrine applies, or should apply, when "social relationships of the parties are of such a character that the law imposes the affirmative duty upon one person to attempt to control another's conduct." Harper and Kime, The Duty To Control The Conduct Of Another, 43 Yale LJ 886, 887 (1930). Correspondingly, the 'ability and authority' test is intended to represent a standard that reflects when the character of the social relationships is such that an individual/entity in a power position can reasonably prevent an intermediary from harming others. The level of submissiveness- or level of defiance- of a patient goes to the heart of what is pivotal in assessing the doctrine's intended application. The level 25 of submissiveness- or level of defiance- of a patient is pivotal in determining the 'character of the social relationship' between a patient and Respondents. To jettison this distinction- as Respondents will urge- disassociates the doctrine from its foundation, and severs the legal elements of the doctrine from the intended purpose of the doctrine. Respondents' version of the control doctrine will construe the doctrine in a manner that defeats its purpose. For example, here, enough 'control' to prevent Ms. Walsh from driving impaired on drugs existed, and the 'character of the social relationship' allowed Respondents to 'control' Ms. Walsh in such a manner. Yet, Respondents will assert this is immaterial. If Respondents' standard is correct, then if a patient comes out of the operating room and Respondents immediately discharge the patient in a weakened state, then control is lacking because Respondents lacked the authority to legally detain. If Respondents' standard if correct, then all non-psychiatric patients admitted to the hospital, who are in the charge of the hospital and who are voluntarily submitting to Respondents' authority and power are not under Respondents' 'control.' Such a standard will effectively abolish the 'control' doctrine for all non-psychiatric patients, even if the majority of the time 'actual 26 control' exists. If 'actual control' exists but the control doctrine does not apply, then the common law is fostering an anti-utilitarian society. In the psychiatric context, the 'character of the social relationship' is such that physical control/legal detainment is required for the control doctrine to apply. Yet, the' character of the social relationship' is different when a patient voluntarily submits to Respondents' authority. The Court should make note of the fact that the Respondents will refuse to acknowledge this significant distinction in their briefs. In their briefs, Respondents will assert that only one way to control another exists- forcibly- through a straightjacket or handcuffs- no matter the 'character of the social relationship. ' Yet, other ways to 'control' exist. (b) Respondents' specialized knowledge, fiduciary obligations, and contractual authority can form the basis of a special relationship activating the 'control' doctrine in certain contexts. In certain contexts, fiduciary authority, fiduciary obligations, and contractual authority can create 'actual control.' In Tenuta v. Lederle Laboratories, 90 NY2d 606, 613 (NY 1997), this COUli discussed out-of-state precedent that found "The relation of a physician to his patient and the immediate family is one of the highest trust. On account of his scientific knowledge and his peculiar relation, an attending physician is, in a 27 certain sense, in custody of a patient afflicted with infectious or contagious d· " Isease ... It is unclear from the Tenuto decision what effect this legal proposition had on the final outcome, yet, this Court has held in other contexts that "[ a] special relationship may be established by persons who possess unique or specialized expertise ... " Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173,180 (NY 2011). In Accord, Kimmell v. Schaefer, 89 NY2d 257, 263 (NY 1996); Cf Harper and Kime, Control The Conduct Of Another, 43 Yale LJ 886, 897 (1930). As importantly, this Court has stated that "[t]he physician-patient relationship thus operates and flourishes in an atmosphere of transcendent trust and confidence and is infused with fiduciary obligations." Aufrichtig v. Lowell, 85 NY2d 540, 546 (NY 1995),citing, CPLR §4504. "[I]t is fundamental that fiduciary liability is not dependent solely upon an agreement or contractual relation between the fiduciary and the beneficiary but results from the relation." EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 20 (NY 2005). Physicians' fiduciary obligations are so intertwined with physicians' professional duties that a claim for breach of fiduciary duties is legally redundant when a claim for malpractice is interposed. See, Padilla v. Verczly-Porter, 66 28 AD3d 1481,1484 (4th Dept 2009); Matter a/Small Litig, 109 AD3d 1212, 1214 (4th Dept 2013). "A person seeking medical care entrusts his well-being, and often his life, to the hands of his physicians ... When medication is required, the average patient's reliance on others necessarily becomes absolute." Baker v. St. Agnes Hasp., 70 AD2d 400, 404 (2d Dept 1979). "Because of the manifold interests they serve and the unique trust reposed in them by society, attorneys at law, like physicians, bear special relationships to their clients which the Canons of Professional Ethics are designed to sustain and protect." Greenwald v. Zyvith, 23 AD2d 201, 204 (2d Dept 1965). Indeed, the physician-patient relationship "impose[ s] upon the health care provider greater responsibilities than that required in the ordinary commercial marketplace." Ash v. New York Univ. Dental Care, 164 AD2d 366,371 (lst Dept 1990)(Emphasis Supplied). See, Murphy v. Kuhn, 90 NY2d 266, 273 (NY 1997). This Court has stated: Decent and respectful treatment is implied in the [medical] contract from the confidential relation of the parties and especially because of the necessary exposure of the person required of the patient in connection with the services to be performed pursuant to the contract. The implication arises whenever one person is placed in the control or protection of another. It grows out of peculiar and special relationships. Stone v. William M Eisen Co., 219 NY 205, 208-209 (NY 1916). 29 This Court's recognition of the doctor-patient relationship as a fiduciary relationship is consistent with the roots and origin of common law. "The American law of fiduciary relationships was first espoused to protect patients in relationships with physician providers in 1760 ... " Dayna Bowen Matthew, Implementing American Health Care Reform: The Fiduciary Imperative, 59 Buffalo L.Rev. 715,719 (2011), citing, William Blackstone, Commentaries at 122. This Court's recognition of the physician-patient relationship as fiduciary possibly arises because "the physician-patient relationship is characterized by the trust and confidence that patients place in their physicians. The resulting vulnerability the patient accepts by placing herself at the mercy of the physicians' exercise of discretion and power contrasts sharply with the superiority of medical knowledge and information the physician has." (Id. at 722; 745.) As the dominant parties in a fiduciary relationship, Respondents must not betray their fiduciary responsibilities. In Meinhard v. Salmon, 249 NY 458 (NY 1928), Chief Justice Cardozo described the uniqueness of fiduciary obligations: Many f01111s of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place ... Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court. (Id. at 464.) 30 In Marmelstein v. Kehillat, 11 NY3d 15, 21 (NY 2008), this Court held "that [the] two essential elements of a fiduciary relation are de facto control and dominance." (Emphasis Supplied.) The fiduciary physician-patient relationship is characterized by 'de facto control' by the physician/hospital, yet Respondents are asserting that Respondents did not 'control' a patient who voluntarily submitted to their authority. An analysis that finds that Respondents were Ms. Walsh's fiduciaries, but that also finds Respondents did not control Ms. Walsh is internally contradictory. Indeed, "the law defines fiduciary as a person entrusted with power ... Often the party that the fiduciary serves cannot effectively monitor the fiduciary'S performance." Marc Rodwin, Strains in the fiduciary metaphor: divided physician loyalties and obligations in a changing health care system, 21 Am. J. L. & Med. 241,243 (1995). Cj, Young v. Huntsville Hospital and Battles Services, 595 So. 2d 1386 (Ala. 1992),citing B. Lindahl, Dooley's Modern Tort Law: Liability and Litigation §3.12 at 34 (1984 & 1986 Supp.) ("Apply[ing] the 'dependence' test, we can hardly imagine a situation in which a person is more dependent on another for basic bodily protection and care than the situation of an anesthetized or sedated patient.") 31 Along with Respondents' fiduciary status, another significant reason why 'control' exists in this case is because Ms. Walsh conveyed contractual authority to Respondents. In New York, physicians have no per se 'legal' authority to cut into a patient's body, or dissect a patient's brain. This authority arises from the contractual relationship between a physician and patient. See, Matter of Bezio v. Dorsey, 21 NY3d 93,100-101 (NY 2013) ("[T]he right ofa competent adult to refuse medical treatment- [is] a prerogative this Court recognized in several of our prior cases.") Respondents' authority to operate, dissect, and treat patients only arises because the patient voluntarily submits to the Respondents' authority to do such things- and nothing else. Actually, physicians are granted- through voluntary contracts- authority to do things to individuals that no one else in society is allowed to do. In this regard, physicians actually have more authority than the government. In the case at bar, Respondents possessed sufficient 'ability' to control Ms. Walsh because (1) they had specialized knowledge allowing them to recognize the danger of driving impaired; (2) they had notice of the danger, as they created the cognitive impairment and were on notice that Ms. Walsh drove herself to the hospital, as it is documented in her chmi; (3) and Ms. Walsh detrimentally relied 32 upon Respondents and relied upon her fiduciaries. Even if a patient is not familiar with legal terminology such as 'fiduciary,' most patients believe that physicians and hospitals will take care of them in their weakest moments. Such societal confidence in the medical community is instilled in New York citizens because of this Court's recognition of physicians' fiduciary obligations. In this case, Respondents possessed sufficient 'authority' to control Ms. Walsh (1) because of the existence of contractual authority, which Ms. Walsh conveyed to Respondents and because Ms. Walsh submitted to it; (2) and because Ms. Walsh detrimentally relied and/or voluntarily submitted to Respondents' fiduciary authority and control. When Respondents administer narcotics to a patient and take away the patient's ability to self-protect, then the patient's contractual rights and the Respondents' fiduciary obligations mandate that Respondents accept the responsibility of not terminating treatment until the patient's ability to self-protect comes back, or Respondents confirm the patient is not in harm's way from the most reasonable risks. Respondents might very well argue that they should not be responsible for worrying about how a patient gets home from the hospital. Yet, if the physician- patient is 'infused with fiduciary obligations', then Respondents cannot have such 33 a myopic view of their duty, and believe they are entitled to discharge patients into inherently dangerous situations. If Respondents are allowed to terminate medical treatment when the termination creates inherently dangerous situations, then it seems to follow that the physician-patient relationship is not 'infused with fiduciary obligations.' If this is so, then the character of the physician-patient relationship- and medical treatment in New York- is redefined moving forward as a relationship that reflects the 'trodden of the crowd' of New York society. If this is so, then it is time New York comes to accept that the physician-patient relationship is akin to a bartender-patron relationship. To be sure, a finding that fiduciary duties are immaterial to the 'duty' analysis will effectively 'defuse' fiduciary obligations from the physician-patient relationship. Such a finding will shake the confidence of all New York citizens in the medical community, as it should. Such a finding implies that it was foolish for Ms. Walsh- and all patients- to rely upon Respondents' expertise. Such a finding, and such a paradigm, trivializes patients' interests, and forfeits their rights. This is especially so when considering that patients' lack physicians' specialized knowledge and cannot question anything 34 Respondents recommend, as before. Yet now, physicians are no longer fiduciaries. Actually, if this Court 'defuses' fiduciary obligations, New York citizens seeking medical treatment will land in a worse position than those of buyers and sellers in the market place. This is because many medical situations are unexpected, especially with Emergency Room patients, amplifying helplessness. In contrast, a patron who seeks out a bar and bartender chooses to do so, and exerts free-will in doing so. Because of the unexpected nature of medical syndromes that cause patients to seek treatment at Emergency Departments, patients lack the ability to make such 'choices.' And now Respondents want patients to have no choice but to seek treatment from non-fiduciary treaters. In their briefs, Respondents might try to run away from this eventuality, but this is the functional impact if Respondents' arguments prevail. It is true that Respondents intend to make 'authority to legally detain' the baseline standard for' control' in all medical contexts. In advocating for this detainment standard, Respondents will request this COUli exclude factors such as specialized knowledge, fiduciary obligations, and contractual authority. In essence, Respondents intend to incorporate into the legal standard factually 35 pointless and legally immaterial legal elements (legal authority to detain), while at the same time, discarding legally relevant and germane factors. In effect, Respondents analyzed the context at hand, and figured out what is relevant and irrelevant to the context, and from that analysis, Respondents argued that the irrelevant factors are outcome determinative, and the relevant factors are legally immaterial. The jurisprudence Respondents intend to create will, arguably, lead to irrational legal doctrines, since Respondents want irrelevant legal elements written into the legal doctrines and relevant legal factors excluded. In contrast, Appellant proposes that the 'authority and ability' test is a global standard that should require the lower courts to evaluate what factors are context relevant, and arrive at a reasoned judgment from the context relevant factors- and not extraneous factors. A holding that Respondents had sufficient ability and authority to control a patient administered narcotics who voluntarily submitted to Respondents 'control' is consistent with this State's policies pertaining to Respondents' responsibilities to their patients. See, NYCRR §40S.9(a)(1)(requiring implementation of discharge policies that "protect the health and safety of the patients"); NYCRR §40S.9(f)(7) (stating discharge should not create a "medical hazard" to the patient). 36 A holding that Respondents 'controlled' Ms. Walsh through contractual authority, fiduciary authority, or specialized knowledge is consistent with the pragmatic 'actual' control standard articulated by this Court in Holdamp/ & Hamilton. (c) A reasonable interpretation of Purdy evidences that 'control' existed in this case. In Purdy v. Pub. Adm'r o/Westchester County, 72 NY2d 1 (NY 1988), a patient had a chronic natural syndrome that sometimes caused fainting spells. The patient left a nursing facility, and ultimately fainted while driving, causing injury to a third-party. In holding that control did not exist under those facts, Purdy articulated the legal standard pertaining to 'control' as whether the patient had "no medical reason" "impeding her ability to leave Bethel [facility unaccompanied]." (Id. at 8.) Notably, this Court has never defined, or expounded upon, Purdy's 'no medical reason' standard. Since the Court's articulation of the pertinent legal standard in Purdy was concise, Purdy's context may illuminate some meaning to the 'no medical reason' standard. More exactly, in Purdy, at the time the intermediary-patient left the defendant-facility, the intermediary had a chronic 37 natural condition- with no observable or detectable indications that the syndrome was going to immediately activate/onset, or effect driving abilities. A reasonable interpretation of Purdy's 'no medical reason' standard is to construe it to mean no imminent medical reason/risk impeding the patient's ability to leave the facility. Such a standard is satisfied with known natural conditions- such as a bleed in the brain- or known man-made conditions, such as an impairment from narcotics administered by the hospital and doctors. Such a standard would require 'control' in only the most important, and immediate, circumstances. Such a standard would also require notice of the immediate nature of the condition, and require that the patient voluntarily chose to remain at the facility. This Court's holdings in the psychiatric 'control' cases are consistent with an interpretation of Purdy that construes 'no medical reason' 'impeding' leaving the facility to include natural syndromes that cause a known, immediate risk. This is because psychiatric illnesses fall under such a classification. Cf, Dunn v. State, 29 NY2d 313 (1971); Januszko v State, 47 NY2d 774 (1979); Williams v. State, 18 NY3d 981 (2012). Yet, the Court could also interpret Purdy in a more restricted manner, and hold the 'no medical reason' standard encompasses only man-made pathologies 38 that pose a known, immediate risk. According to one seminal article, if misfeasance causes a dangerous situation, then more impetus to apply the control doctrine exists. See, Harper and Kime, Control The Conduct Of Another, 43 Yale LJ 886, 886-887 (1930). Such a concept has some support in this Court's precedent. See, Ernest v. Red Creek Cent. Sch. Dist., 93 NY2d 664, 672 (NY 1999)(Finding for a duty to control and/or not negligently release a student into a foreseeably hazardous setting when the school "had a hand in creating" the foreseeable hazard); Schuster v. New York, 5 NY2d 75, 87-88 (NY 1958)(McNally J.)(Concurring), referencing, Meiselman v. Crown Heights Hosp., 285 NY 389 ("Here a jury might find that the defendant prematurely withdrew partial protection of plaintiff s intestate while he was in a state of danger brought about in some measure by respondent's acts.") Applying the 'control' doctrine in situations where the tortfeasor creates the situation is supported by simple common sense. Otherwise said, it is reasonable that medical tortfeasors 'control' harms that they were instrumental in creating. Ernest holds same in the school context. Correspondingly, Restatement Second of T0l1s §303 cmt (d), titled "When actor does not intend to cause particular conduct," states: 39 The actor may not intend the third person to act in any particular way. If so, the actor's negligence lies in the fact that he does or should realize that his conduct may cause the third person so to act, or in the further likelihood that the third person may do the act in a careless manner. In such case, the actor's negligence depends upon the extent to which he is required to realize and take into account the tendency of mankind or the particular person to act improperly, or upon his knowledge of any particular likelihood that the particular person will so act. Where ... the third person's act is done in response to the stimulus of the situation created by the defendant's conduct, there is a tendency to require the actor to realize the tendency of human beings to act improperly to a greater extent than where he creates a situation the danger of which lies in the chance of impropriety on the part of a third person in doing an act which is not so influence by the situation created by the actor. (Emphasis Supplied.)3 However, if the Court construes the control doctrine to exclude natural conditions that pose an imminent threat, then the physician-patient relationship will be 'defused' of fiduciary obligations. If Respondents betray their fiduciary obligations, arguably, the causative agent of the condition that gives rise to the betrayal should be deemed irrelevant. Respondents' fiduciary obligations are the same for a patient with a natural impairment as they are for a patient with a man- 3 Section §303 applies to direct duties, and explicitly applies to situations when an actor's actions cause a 'starling' effect on another- such as a driver swerving into the opposite land of traffic. Yet, there is no valid reason why the principle should not apply to an actor's creation of a cognitive impairment in another. 40 made impairment. For example, if Ms. Walsh was cognitively impaired from a bleed to the brain, which Respondents were aware of- as oppose to from narcotics- and she voluntarily submitted to Respondents' authority, then 'actual control' would exist. In terms of the reach of the 'control' doctrine in the medical context, the doctrine has incorporated 'physical' custody or physical charge into the analysis, which places a reasonable restriction on the period of time a medical tortfeasor has to 'control.' CI, Mirand v. City a/New York, 84 NY2d 44,49 (NY 1994); Williams v. Weatherstone, 23 NY3d 384,401 (NY 20 14)(Stating the school's physical custody of the student places the school "in a position to determine the timing, place and conditions for sending the child home" and creates a duty "to release the child from its physical custody "in a safe and anticipated manner. ") In their briefs, Respondents will assert that Purdy's 'medical reason' for staying/impeding ability to leave standard means 'psychiatric reason' impeding ability to leave the facility. Yet, Purdy's standard was the more expansive 'medical reason' - and not 'psychiatric reason.' Respondents will also assert that Purdy's 'impeding her ability to leave' means 'authority to legally detain.' In actuality, Respondents will request this Court rewrite 'medical reason' to 'psychiatric reason,' and request that this COUl1 rewrite 'impeding her ability to 41 leave' to 'authority to legally detain.' It is a certainty that Respondents will request that this Court rewrite Purdy. Point III: A duty should exist because Respondents created a risk of harm by violating professional duties and hospital protocols after they created a cognitive impairment in a patient by the affirmative acts of providing treatment and administering narcotic medications. High-courts of sister states have held that a 'special relationship' is not necessary when physicians' affirmative actions of negligence cause a risk of harm to third-parties. Among such decisions are Coombes v. Florio, 877 NE2d 567 (Mass 2007) and B.R. ex rel. Jeffs v. w., 2012 UT 11, 275 P3d 228 ,231; 2012 WL621341 (Utah 2012). Such a distinction is supported in the Restatement of Torts. In McKenzie v. Hawaii Permanente Medical Group, Inc. 98 Haw. 296 (2002), the Hawaiian high-court noted: Section §315 [of the Restatement 2d pertaining to the 'control' principle] is a special application of the general rule stated in Restatement 2d §314 that a person does not have a duty to act affirmatively to protect another person from harm ... Section §314 applies 'only where the peril in which the actor knows the other is placed is not due to any active force which is under the actor's control. If a force is within the actor's control, his failure to control it is treated as though he were actively directing it and not as a breach of duty to take affirmative steps' [Discussing §314 (cmt d)]. .. Accordingly, the 'special relationship' arguments put forth by the parties are inapplicable to this case because medical malpractice involving the negligent 42 prescription of medication is 'misfeasance' that is not analogous to the 'nonfeasance' in failing to act as a 'Good Samaritan' or failing to take affirmative 'action' as the term is used by Restatement 2d §314. (Id. at 299- 300.) (Emphasis Supplied.) In this case, 'active forces' under the Respondents' control- namely administration of medication, issuing/not issuing a warning, and discharging an impaired patient who voluntarily submitted to their control- caused the peril in which Appellant was placed upon Ms. Walsh's discharge. Correspondingly, Restatement Third of Torts clarified the Restatement Second of Torts in the following way: The Restatement Second of Torts §302B, Comment e, provides for a duty of care when 'the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such [third party] misconduct.' Section §449 of the Second Restatement also contemplated liability, without regard to any special relationship, for acts that are negligent because of the risk of the third party's conduct. .. (See, Restatement 3rd TOlis: Liability for Physical and Negligence Liability, §37, cmt. (d) (2012)). New York's precedent is unclear whether a special relationship is necessary if a medical tortfeasor launches harm through affirmative actions. In all other contexts of our society- except for municipalities- a special relationship is not necessary when a tortfeasor launches harm. 43 Traditionally, the launching of harm doctrine applies when a tortfeasor "creates an unreasonable risk of harm to others, or increases that risk." See, Church v. Callanan Indus., 99 NY2d 104, III (NY 2002). A plaintiff must also prove that a medical tortfeasor failed to adhere to "relevant professional standards." Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1,6-7 (NY 2013). In Tenuta, the physician's course of conduct created the risk of harm by the administration of narcotics, comprehensive services, and failure to warn. Additionally, the physician failed to adhere to relevant professional standards by failing to warn. Distinguishable from Tenuta is Cohen v. Cabrini Med. Ctr., 94 NY2d 639. In Cohen, a plaintiff non-patient wife alleged that the defendant-doctor's attempt to raise her husband's sperm count negligently caused her husband to have a lower sperm count because of the physician's surgical malpractice, which caused the wife (l) psychological harm and (2) the necessity to undergo in vitro fertilization ("IVF") procedures in order to conceive. (Id. at 642.) This Court declined to extend the physician's duty "to insure conferral of a benefit upon the wife of a patient under these circumstances." (Id. at 644.) Cohen distinguished Tenuta because the physical harm to the non-patient wife was a medical procedure that the wife voluntarily chose to undergo. So the wife's physical harm did not arise from 44 an "abrupt, cataclysmic" event that typically sounds in tort. See, Sommer v. Fed. Signal Corp., 79 NY2d 540, 540. Instead, the physical harm arose from a free choice of the non-patient wife. On its surface, Cohen may seem like a possible launching of harm case from a failure to adhere to professional standards (assuming arguendo that the wife's choice to undergo the IVF procedure is immaterial). Yet, Cohen is probably not a launching of harm case at all. Specifically, the patient-husband presented to the defendant-physician with an inability to create children. The purpose of the surgery was to attempt to remove/cure the patient-husband's medical 'inability' to have children. To any extent malpractice occurred in Cohen, it did not, pragmatically, exacerbate or create a new risk of harm- because the husband had the same 'inability' to have children after the malpractice as he did before the malpractice. What the malpractice/course of conduct did was deprive the patient- husband of an opportunity to be cured of his medical inability to have children. In medical malpractice cases, if malpractice leads to a decrease in the probability of success of treatment of an illness, then such a decrease can satisfy the proximate causation element of a malpractice claim. This is typically in mis-diagnose cases, such as a failure to diagnose cancer leading to a decrease in the probability to cure the cancer. Yet, to incorporate into the orbit of third party duty such proximate 45 cause reasoning- as was an issue in Cohen- would be a significant expansion of the duty doctrine, which this Court declined. Although contractual/professional duties often overlap with actions that form the basis of the launching of harm claim, the two are not mutually exclusive- and a breach of a contract/professional duty may not lead to a launching of harm claim. In effect, the physician's deviation in Cohen ensured that the physician was not an instrument of good as to the non-patient wife. Not being an instrument of good is not the same as launching harm. Instead of stating that the physician's conduct was not an instrument of good, it could also be said that the physician's conduct did not have a sufficient causal nexus to the wife's ultimate harm. Cj, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §43(a) (Formerly §324A(a))(201 2)(Stating third-party liability exists if "the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking.") The relevant third-party harm in Cohen was the necessity of the wife to undergo the IVF procedure. Admittedly, Cohen could arguably be framed as an 'increase' of risk of harm case, in a theoretical sense, since the physical damage done to the husband's body by the surgical malpractice and/or lowering of the husband's sperm count to an even more abnormal level might have, 46 hypothetically, increased the risk of harm 5-10% and/or increased the likelihood of the necessity of IVF procedures 5-10%. When a pre-existing condition is exacerbated by negligence- whether it be by a failure to warn or a negligent act- leading to an occurrence of harm, it seems the distinction between increase of harm versus being an instrument of good is difficult to draw, and generally with room for disagreement. A reasonable solution is to focus on the degree of the increase of the risk and utilize a more qualitative assessment (i.e., does the negligent act tip the scales significantly, or only slightly? Is it a 5% increase or 50% increase?) In contrast to Cohen, here, the Respondents' course of conduct and actions created a condition that did not exist before the treatment- a cognitive impairment, and said new condition in hand with Respondents' actions and negligent actions created the risk of harm of driving impaired on drugs. On its surface Eiseman v. State of New York, 70 NY2d 175, may seem like a possible launching of harm case/increase of risk case (assuming arguendo that the prison doctor had a professional duty to research the prisoner's medical history when filling out a college hiring form pertaining to the hiring of the prisoner). Yet, like Cohen, Eiseman is probably not a launching of harm case at all. Specifically, in Eiseman there was no viable allegation that the prisoner should not 47 have been released. Consequently, the connection between the harm- violent crime against a college student- and the negligent act, misreporting by the physician on the college hiring form (assuming any negligence) was tenuous and/or had no or a limited causal nexus. The negligent action determined who would be harmed by the underlying act, but it did not contribute to the underlying act. Otherwise said, the negligent act did not contribute to a launching of harm but instead contributed to who the harm would be launched into. Cf Church v. Callanan Indus., 99 NY2d 104, 112 (NY 2002)(Finding the launching of harm doctrine did not apply when a driver fall asleep at the wheel causing negligent driving, and holding that a failure to install guard-rails did not create or increase the risk of the "letta's divergence from the roadway.,,)4 In contrast to Eiseman, here, the underlying act- driving impaired- was solely or predominately caused by Respondents' actions and/or negligent actions. On its surface, McNulty may also seem like a possible launching of harm/increase risk of harm case. This is assuming arguendo that the lack of a professional duty/fiduciary role between the non-patient and defendant-physicians is deemed trivial. Yet, like Cohen & Eiseman, McNulty is probably not a 4 Church basically refused to incorporate into the orbit of third-party duty the proximate cause concept of allowing recovery for an increase in severity of injuries, as oppose to causing or increasing the likelihood of the accident. 48 launching of harm case at all. Specifically, the non-patient in McNulty was situated close to the sick patient prior to the physicians subsequently providing the wrong advice to the non-patient (which was that the patient's meningitis was not contagious). There was no possible way to determine if the meningitis was spread prior to the bad advice, or after the bad advice. This fact alters everything. If the non-patient had already obtained the disease of meningitis before the bad advice, then the physicians' bad advice caused or led to a failure to control the disease, but it did not lead to an increase risk of obtaining the disease, nor create the risk of obtaining the disease. Specifically, the 'harm' in McNulty was the spreading of meningitis, and not the transferring/creation of meningitis. Although Appellant is unaware of this Court ever explicitly defining 'harm' as it relates to the launching of harm doctrine, it seems reasonable that the term encompasses or requires a definable occurrence/event happening as oppose to the controlling of the spreading of a disease. If the term/doctrine did not require an occurrence of an event happening, then the term 'harm' in 'increase' type cases would encompass the proximate cause concept of allowing recovery for a failure to cure/lessening the likelihood of a cure, which would be a significant expansion of the duty doctrine, as previously stated. In effect, both McNulty and Cohen had a similar 49 analytical problem preventing application of the launching of harm doctrine, although the problem presented itself in different forms in each case. Of Tenuto, Eiseman, McNulty, & Cohen, Tenuto is arguably the only valid launching of harm case, and it follows that a duty existed in Tenuto. As importantly, in McNulty v. City of New York, 100 NY2d 227 (NY2003), this Court stated that third-party liability could exist if "[u]nder the rule stated, the harm complained of by the third person arises because of the doctor's treatment of the patient." Id. at 233, interpreting Tenuto. Notably, this Court, nor any Appellate Division decision has ever- explicitly- defined what "arises because of the doctor's treatment," means, or its scope, or its intent. One- of many- possible interpretations of McNulty's "arises because of the doctor's treatment"- and interpretation of this Court's precedent- is that if a physician 'creates' a risk of harm by physical acts, then a third-party duty should exist. Specifically, this Court stated that the risk of harm arose from the treatment in Tenuto, while the risk of harm did not arise from the treatment in McNulty. Arguably, this is because in Tenuto the underlying disease- polio- that was transferred to the third-party was created by physical acts occurring during treatment, while in McNulty the underlying disease- meningitis- was a natural 50 pathology and the medical tortfeasor- arguably- 'increased' the risk of harm of obtaining meningitis by providing bad advice. 5 Thus, these cases, could be interpreted such that "arises because of the doctor's treatment of the patient" means that third-party liability will exist only when physicians' treatment create a pathology that creates a risk of the harm. This interpretation of "arises because of the doctor's treatment of the patient" construes the "arise" term in McNulty to mean originate or create. This interpretation also applies a restricted (if not obtuse) reading of McNulty's "treatment" to mean only physical acts that create a pathology. This is probably the narrowest reasonable reading of Tenuta/McNulty that is possible- assuming the Court does not overturn either case and construes both cases in determining the launching of harm doctrine in the medical context. The recognition of the legal distinction between increasing a risk as oppose to creating a risk, obviously, has a significant impact on limiting the orbit of Respondents' duty. Additionally, the most recent Restatement of Torts states that if a tortfeasor's "conduct creates a risk of physical harm," then the actor ordinarily 5 For purposes of interpreting McNulty, Appellant will assume that McNulty qualifies as a launching of harm case. If McNulty and Cohen are not launching of harm cases, McNulty's arise from treatment language, arguably, might only apply to §324A( c) claims. 51 has a duty. See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §7 (2010); §7 cmt(l). This is so without any 'special relationship' and without any reference to whether §324A liability exists. So the Restatement has made a distinction between affirmative acts that' create' a risk of harm as oppose to affirmative acts that 'increase' a risk of harm. (Although affirmative acts that 'increase' a risk of harm can still create a duty under the newest Restatement of Torts.) A second reasonable interpretation of McNulty's "arises because of the doctor's treatment of the patient" is to construe Tenuta/McNulty to mean that liability can only exist if the physician 'substantially increased' the risk of harm, or created the risk of harm. In the first instance, the distinction between 'substantially increase' and 'creation' of a risk may be semantical in some cases. As importantly, allowing recovery if a physician 'substantially increased' the risk of harm would allow future flexibility, especially in exacerbation cases of egregious or reckless medical conduct. A standard of 'substantially increases' contains a qualitative criterion requiring compelling circumstances exist for its threshold. Such a standard ensures reasonable strictures on the doctrine's application. For example, if hypothetically, a psychiatrist, or pain 'mill' clinic, negligently prescribes seven narcotic-type medications to a patient, 'substantially 52 increasing' the risk/likelihood that the patient's underlying condition would cause a violent outburst and hann to others, is it in New York's best interest that tmi liability not exist? A 'substantially' increase standard could entail (i) an evaluation of the underlying course of conduct/antecedent transactional facts, which could possibly create universal rules in some contexts (i.e., failure to warn not to drive in E.R. setting) but may allow case by case analysis in other contexts (i.e., negligent prescribing five, six, seven medications), and (ii) an evaluation of relevant context variables/context forces to determine if the increase in the risk significantly altered a substantial/dominant variable to the extent of causing the occurrence (for example, evaluating whether a patient took a certain medication 100 times before a physician failed to warn). Such a qualitative assessment of 'substantial increase' of the harm and/or substantial increase of the risk of harm beyond that which would have existed without the undertaking, arguably, incorporates a damages/apportionment or causation evaluation more so into the third-party duty analysis. Yet, the duty analysis pertains to the question of whether the law should make an actor liable for a certain harm. More impetus to do so exists when the actor is a bigger factor in creating the final harm. Such a paradigm would create a middle ground of not 53 allowing all launching of harm cases, but allowing stronger cases. Firstly, it changes the focus- to some extent- from categorical distinctions that focus on the character of the act (i.e., misfeasance/nonfeasance) to more qualitative distinctions that focus on the character of the practical result. Secondly, it makes the relevant analysis focus on a pragmatic increase of risk instead of a theoretical increase of risk. Thirdly, it makes the standard more objective, and less subjective. For example, a subcontractor paving a road could leave 35 large pot holes in a street, or leave one mini pot hole in the street. The same harm/accident could occur because of the one mini pot hole or the 35 large pot holes. If the harm is from the one mini pot hole, it could be argued that the one mini pot hole increased a risk of harm. Yet, it would seem more impetus for a duty exists in the case where 35 large pot holes were left. A more objective legal standard would in essence require an analysis as to whether a reasonably prudent person in the tortfeasor's position [not third-party victim's position] utilizing the tortfeasor's perspective would deem, or should have deemed, at the time of the act/nonaction that the negligent conduct would substantial increase a risk of harm to third-parties. Such a qualitative analysis (i) in hand with an analysis of a causal nexus between the negligent act/nonact and activity that created the harm; and (ii) in hand with an 54 analysis of who was in the best position to prevent against the risk of harm would ensure only reasonable utilization of the doctrine occurs in the medical context. A reasonable interpretation of McNulty that allows recovery when the tortfeasor substantially increases the risk of harm would interpret 'arise' to mean create or substantially increase, and would not interpret 'treatment' in an obtuse manner to mean only physical professional acts that create a pathology. A third reasonable interpretation of this Court's precedent, and McNulty's "arise" is to construe it to allow recovery if the medical tortfeasor increased the risk of harm, or created the risk of harm, as with non-medical launching of harm cases. This Court has never actually held that 'increase' type medical cases cannot create third-party liability. This Court's prior precedent in 'increase' type cases can be distinguished on other grounds, such as no professional duty existing- as in Eiseman. This third interpretation focuses more so on McNulty's language "doctor's treatment of the patient." In McNulty, the physician had no professional relationship, nor professional duty, to the non-patient, so the tort (bad advice to the non-patient) did not arise from the doctor's professional relationship with the patient and/or from 'the doctor's treatment of the patient'. McNulty could merely stand for the proposition that when a physician provides medical advice to non- 55 patients the physician is not automatically deemed a fiduciary in all contexts, and a professional relationship does not automatically arise. Thus, if the physician was not a fiduciary to the non-patient, then the bad advice/nondisclosure is not actionable under traditional concepts (and/or the non-patient's 'reliance' was unreasonable making the functional starting point and end point the same under the law, as if a janitor or accountant provided the medical advice). When interpreting McNulty's language of "arise because of the doctor's treatment of the patient," the Appellate Divisions have consistently dismissed cases where a failure to warn about the transmission of a natural pathology 'increased' (or arguably created) the risk/likelihood of the transmission of the disease. The Appellate Divisions have found that the transmission of the natural pathology did not meet the McNulty/Tenuta standard. In so holding, the Appellate Divisions have (1) implicitly embraced the narrowest construction of Tenuta/McNulty that requires the physician create a medical syndrome; (2) and implicitly held that most forms of nondisclosure by physicians are not actionable. See, Spina v. Jack D. Weiler Hasp. of the Albert Einstein Call. of Medicine, 28 AD3d 311, 312 (1 st Dept 2006)(Tuberculosis); Klein v. Bialer, 72 AD3d 744, 746 (2d Dept 201 O)(Physician treating child with genetic disorder failed to warn non- 56 patient mother that any future offspring could have a genetic disorder);6 Candelaria v. Teperman, 15 AD3d 204 (lst Dept 2005)(Hepatitis); flerrgesell v. Genesee Hasp., 45 AD3d 1488, 1489 (4th Dept 2007)(Hepatitis); Cf Jarmie v. Trancale, 306 Conn. 578 (Sup Ct Conn 2012)(Finding Connecticut- as Massachusetts- would draw a distinction between failure to warn claims arising from prescription drugs as oppose to failure to warn claims arising from a natural syndrome, although with two Justices Dissenting). No Appellate Division decision offers much scrutiny, if any, between different possible interpretations of McNulty. If this Court follows the Appellate Division holdings regarding nondisclosure/'increase' type cases, and if this Court holds that all such cases are categorically precluded, then it will create a duty analysis that disassociates Respondents' professional duties from their legal duty. Specifically, physicians are fiduciaries whose words and statements are relied upon by others. Obviously, words, misstatements, or nondisclosures of a physician- by themselves- cannot create a medical syndrome that creates a risk of harm. Yet, words, misstatements or nondisclosures can 'increase' the risk of harm, or 'substantially increase' the 6 Unlike Tenuta, the warning in Klein was not germane to the treatment of the patient, and there was probably no professional duty pertaining to such a warnmg. 57 risk of harm (and arguably 'create' the risk of harm, although not create a medical syndrome). To construe McNulty's 'treatment' in a manner that excludes Respondents' words and representations from the duty analysis does the following: (1) artificially excludes a significant amount of professional responsibilities from the duty analysis for no valid basis; (2) artificially excludes Respondents' specialized knowledge from the duty analysis for no valid basis. This is because Respondents' specialized knowledge is often expressed and takes the form of words and representations. Thirdly, it artificially and unduly restricts the principle enunciated in §324A( c )(reliance). In essence, it would create precedent that states negligent misrepresentations are only actionable if the negligent misrepresentations relate to diseases that the physician caused. If there are negligent misrepresentations about diseases that the physician did not create- but are aware of- then liability would not exist. Most medical conditions are not caused by the medical industry. If, hypothetically, the medical industry treats natural conditions 90% of the time, and treats man-made/iatrogenic conditions 10% of the time, then representations and specialized knowledge pertaining to 90% of professional activities are automatically excluded from the duty analysis for no valid reason, if 'increase' 58 cases are categorically precluded. Indeed, such a paradigm excludes physicians' most important roles from the duty analysis. Such an analysis is akin to forbidding a patient from recovering from a mis- diagnosis of cancer because the physician did not create the cancerous condition that was mis-diagnosed. Such a paradigm implicitly draws a distinction between negligent actions as oppose to negligent statements. It draws such a distinction even though both negligent words and negligent actions can cause the same harm. For example, this Court has stated: "Suppose the defendant [physician] had mislead the plaintiff [patient] so that she failed to employ or to call in the aid of another surgeon for that reason, could it be claimed that the defendant was not responsible for the omission caused by his failure to give the necessary information, and for leaving the plaintiff in ignorance of the actual state of the case? Clearly not, for the plaintiff had a right to assume that the defendant had performed his work in a skillful manner, and if there was any omission it was occasioned by the fault of the defendant, and not of the plaintiff." Carpenter v. Blake, 75 NY 12, 18 (NY 1878). Both words and actions can "arise from the doctor's treatment of the patient," and satisfy McNulty's edict. To hold otherwise requires a skewed, obtuse meaning of the McNulty's "treatment." Indeed, "treatment" reasonably means 59 "professional duties," consistent with Landon's language, which includes statements and actions. Further support for this interpretation of "treatment" is provided by Purdy where the COUli did not allow the failure to warn claims- arising from a natural pathology- partially, because the defendant-physician "was not Shaw's [patient's] treating physician, and therefore was under no legal obligation to warn her of possible dangers ... "7 As importantly, to exclude professional statements and representations, or nondisclosures from the meaning of McNulty's "treatment" is inconsistent with fundamental principles of tort. Specifically, an analysis that focuses on one act (i.e., sole act of nondisclosure/failure to warn, which is alleged nonfeasance) fails to appreciate that the analysis should focus on a 'course of conduct' (i.e., negligent treatment by the physician). "The proper question is not whether an actor's failure to exercise reasonable care entails the commission or omission of a specific act. Instead, it is whether the actor's entire conduct created a risk of harm." See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §3 7, cmt. (c) (2012). 7 Along with not being the "treating doctor," Purdy noted that the physician did not provide the patient with narcotic medications. So Purdy could support the strict construction of Tenuta/McNulty, or a broader construction of the cases. See, Purdy, 77NY2d at 10. 60 The Restatement Third of Torts further instructs: The distinction between misfeasance and nonfeasance can be easily understood. One can be led astray by thinking that a defendant's negligent act must be characterized as an affirmative act for a duty to exist, rather than appreciating that it is the defendant's entire course of conduct that must constitute an affirmative act creating a risk of harm and that negligence may consist of an act or omission creating an unreasonable risk. A classic illustration of this point is the example of a driver who fails to apply his or her brakes to avoid hitting a pedestrian walking in a crosswalk. Even though the driver's negligent act- failing to apply the brakes- is an omission, the driver's careless failure to apply the brakes is negligent driving, not negligent failure to rescue. Accordingly, distinguishing between misfeasance and nonfeasance can best be accomplished, not focusing on whether an individual's specific failure to exercise reasonable care is an error of commission or omission, but rather by focusing on whether the individual's entire course of conduct create the risk of harm. Thus, even though the specific negligent act may constitute an omission, the entirety of the conduct may still be misfeasance that created a risk of harm. (See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §37, Reporter's Notes, cmt. (c) (20 12))(Emphasis Supplied.) As stated, the negligent driver who does not hit his brakes is guilty of negligence for the affirmative act of negligently driving when viewing the 'entire course of conduct.' The negligent physician who does not warn is guilty of 61 negligence for the affirmative act of negligently treating when viewing the' entire course of conduct.' This type of analysis is consistent with the Court's precedent. For example, in Tenuta, the physician failed to warn, but it was the act of administrating the vaccination and/or the 'entire course of conduct' that gave rise to the duty. See, Cahen v. Cabrini Med. Ctr., 94 NY2d 639, 643 (NY 2000)(Interpreting Tenuta and stating it was the "physician's acts in administering the vaccination to the infant that created the serious risk of physical harm to the parent.")(Emphasis supplied). Similarly, McNulty's interpretation of Tenuta focused on the entire 'course of conduct' in Tenuta, including administration of the vaccine and a comprehensive services contract with the defendant-pediatrician. Yet, in McNulty there was no prior course of conduct between the non- patient and physician since there was no treatment, no professional relationship, nor any professional duties in play. McNulty did not have the antecedent events/ transactional facts that existed in Tenuta, leading to the different result. In addition to viewing the entire course of conduct, it is notable that it is the patient who is the subject of the medical contract/treatment, and not the contagious disease. In regards to this point, in cases where a physician fails to warn a patient about the contagious nature of a disease, the patient's disease may not be 62 altered/changed by the bad advice, but the significant change is in the patient's mentality and conduct (i.e., there is a significant change caused by the treatment to a different variable/active force in the relevant context, leading the patient to have social interactions that the patient would not have but for the failure to warn.)8 It is unclear- from a torts' perspective- why an alteration in the patient's mentality/course of conduct caused by the operation of the physician-patient relationship cannot be deemed to "arise from the doctor's treatment of the patient." Cf Restatement 2d §281, cmt. (g) (1 965)("Risk must be understood in the broader sense of including of those hazards and consequences which are to be regarded as normal and ordinary ... If an event appears to have been normal, not unusual, and closely related to the danger created by the actor's original conduct, it is regarded as within the scope of the risk. .. ") McNulty's holding should not led- and it has not yet from this Court- to the conclusion that if there is a prior course of conduct, and a prior professional relationship, then a failure to warn in an 'increase' type case is not actionable. To 8 This change in the patient's mentality leading to a different course of action may fit more so under §324A( c )lreliance doctrine, yet it may also constitute a launching of harm. Moreover, Ten[,ttolMcNulty blur the line between §§324A(a)/324A( c). 63 read McNulty in that way does not appreciate the importance of analyzing the 'course of conduct.' See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §37, Reporter's Notes, cmt. (c) (2012), interpreting Mach, ("Cardozo recognized that sorting affirmative-duty cases from the others required an examination of the entirety of the actor's conduct and whether it created a risk of harm.") In McNulty, the plaintiff did not present the Court with evidence pertaining to whether the physicians failed to warn the patient about the contagious nature of the disease, or present evidence pertaining to whether the physicians' actions/physicians' course of conduct altered the patient's course of conduct and/or created a different course of conduct by the patient. See, McNulty's Plaintiff-Respondent's Brief, 2003 NY App Ct Briefs 52 (NY 2003). Consequently, the Court's analysis focused on the relevant actions and reliance of the non-patient, and the physicians' actions toward the non-patient, solely. 9 In Stiver v. Good & Fair Carting & Moving, Inc, 9 NY3d 253 (NY 2007), a third-party duty did not exist where a mechanic did not find a preexisting defect during a car inspection because it was deemed the negligent inspection did not 9 As previously stated, the meningitis could have spread to the non-patient before the bad advice, precluding the launching of harm doctrine irrespective. 64 make the car less safe then previously (with the holding partially/predominately on policy grounds). Stiver does not address the fact that the negligent conduct of the mechanic might have created a risk by creating a new mentality in the car driver- akin to a patient not warned. The plaintiff in Stiver never interposed this launching of harm argument. See, Stiver Appellant-plaintiffs brief, 2007 NY App. Ct. Briefs 137 (NY 2007). Moreover, the car was the subject of the contract in Stiver, while in the medical context, the patient is the subject of the contract, making the change in patient's mentality more germane to the contract. In contrast to Stiver & McNulty, in Church v. Callanan Indus., 99 NY2d 104 (2002), where the defendant failed to install guard-rails on a road, there was no time for the errant driver- who fell asleep- to create a new mentality based on the defendant's negligence. As importantly, the launching of harm doctrine applies when a 'risk of harm' is caused or increased- and not per se when a 'harm' is caused, or a disease is created. The distinction is subtle, but significant. Specifically, a 'risk' is one thing, and a 'harm' is a different thing- and the two are not one in the same thing. Cf DiPonzio v. Riordan, 89 NY2d 578,583-584 (NY 1997)(Discussing the relationship between the concept of 'risk' and the concept of 'harm. ') 65 For example, in Tenuta, the duty to warn arose from the administration of the vaccine- along with other relevant course of conduct. The physician's inaction/failure to warn created the risk of exposing the patient's parents to polio (i.e., it caused the risk of an invasion of rights). And then, the father's action of staying near his son caused the hann of transferring the polio (i.e., it caused the actual invasion of rights.) Under the narrow interpretation of Tenuta/McNulty that allows recovery only when medical pathologies are created, the distinction between 'risk' and 'harm' is not appreciated. For example, when a patient presents with a contagious disease, the duty to warn arises from the administration of treatment. The administration of the treatment without the warning poses the possible invasion of rights of the third-party (i.e., the risk). The transferring of the pathology to the third-party is the harm. Whether the physician creates the underlying pathology - as oppose to being aware of the pathology through treatment- is logically irrelevant to the creation of risk to the third-party. To note, in Stiver, the Court articulated the launching of harm doctrine in relation to creation or exacerbation of a "dangerous condition." It is unclear if Stiver's "dangerous condition" was articulating Church's "creates an unreasonable risk of harm to others, or increases that risk." See, Church v. Callanan Indus., 99 NY2d 104, Ill. Or if Stiver was intending on rejecting the distinction between 66 'risk' and 'harm' embraced in DiPonzio; rejecting and overturning Church's interpretation of the launching of harm doctrine; and rejecting the Restatement's view ofthird-patiy liability. Since Stiver did not discuss overturning Church as to this point, or discuss rejecting the Restatement of Torts, or discuss radically altering the launching of harm doctrine, it is more likely that it was not intending on radically altering the doctrine. Cf Holdampf v. A. C. & s., Inc., 5 NY3d 486, 494 (NY 2005)(Find the "key consideration critical to the existence of a duty" is whether the defendant was in "the best position to protect against the risk of harm.")(Emphasis Supplied.)) Interpreting "arise from the patient's treatment" in a reasonable manner to apply to situations where a medical tortfeasor 'creates' a risk of harm, or 'substantially increases' a risk of harm is consistent with this Court's holding, and this State's policy that the physician-patient relationship is infused with fiduciary obligations. Specifically, if a physician's professional actions cause or substantially increase a risk of harm to a third-party, then it is reasonable that the fiduciary is the one who accepts accountability. It is notable that "the level of conduct for fiduciaries [has] been kept at a level higher than [those in the market place]." Meinhard v. Salmon, 249 NY 458 (NY 1928). If the launching of harm doctrine applies to other industries, and yet it does not apply to the medical 67 industry, then it is true that fiduciaries' 'level of conduct' is not allotted the same legal significance under the common law as those in the market place- but unbelievably, less legal significance. This conclusion is inescapable. If an electrician is liable to third parties for launching of harm, but not a physician, then the electrician's actions carry more legal consequences. To assert that no correlation exists between legal consequences arising from an action and the level of competency expected of the actors is an argument that lacks the force of common sense. In the case at bar, the Tenuta/McNulty rule and/or launching of harm doctrine applies because Respondents administered treatment and administered mind altering medications to Ms. Walsh, creating a cognitive impairment/new dangerous condition, and removed Ms. Walsh's ability to self-protect as a consequence of the cognitive impairment of the medications. And then Respondents launched harm by creating the risk of impaired driving (1) by failing to warn Ms. Walsh not to drive; (2a) and launched again by discharging an impaired patient, who they impaired, despite knowledge that she drove herself to the hospital, and/or (2b) launched again by failing to follow appropriate hospital discharge procedures. Notably, the trial court dismissed the case prior to discovery so Appellant is unaware of what the hospital's relevant discharge 68 procedures and protocols are. For example, Respondents may have a discharge protocol that any patient administered medication should not be discharged unless someone else is present to drive the patient. To the extent the hospital did have such a protocol, its violation was an administrative error that is easily correctable. In Tenuta, it was a failure to warn that constituted the launching of harm/arise from treatment, which is one of Appellant's allegations. This case constitutes a launching of harm under any of the three interpretations of McNulty. Point IV: A duty should exist because Respondents provided 'comprehensive services' to Ms. Walsh displacing her ability to determine if she should drive. In Tenuta, one of the significant factors that supported the existence of a duty was the fact that the defendant-pediatrician provided 'comprehensive services' to the patient-child. See, McNulty v. City a/New Yark, 100 NY2d 227 (NY 2003), interpreting Tenuta. See also, Church v. Callanan Indus., 99 NY2d 104,112 (NY 2002); Restatement 2d §324A(b). A duty should exist in this case because Respondents provided Ms. Walsh 'comprehensive services' for the period of time she was in the Emergency Department. More exactly, Respondents diagnosed Ms. Walsh's illness; provided treatment, including intravenous narcotics; and then determined when it was 69 appropriate to terminate the treatment and discharge Ms. Walsh. Everything pertaining to Ms. Walsh's treatment was done by Respondents. Correspondingly, Ms. Walsh owed Appellant a duty to evaluate whether she was cognitively impaired, preventing her from legally driving and/or driving safely. Respondents 'comprehensive services' displaced Ms. Walsh's duty to evaluate whether she was cognitively impaired, and as such a duty should exist. Respondents might argue that they did not displace Ms. Walsh's decision to drive, yet such an argument attempts to draw a legal distinction in a context where a functionallreallife distinction is impossible to draw because of the closeness of time of the driving to the termination of the treatment. Respondents' argument also contravene principles of existing precedent. See, Freeman v. St. Clare's Hosp. & Health Ctr., 156 AD2d 300 (1st Dept 1989) ("The degree of care is commensurate with a patient's capacity to provide for her own safety. The exact extent of the injury need not be foreseeable so long as some type of injury may be reasonably anticipated"); Killeen v. State, 66 NY2d 850, 852 (1985); Horton v. Niagara Falls Mem'l Med. Ctr., 51 AD2d 152,154 (4th Dept 1976); Nelson v. New York City Health & Hospitals Corp., 237 AD2d 189, 189 (1st Dept 1997); Clinton v. City of New York, 140 AD2d 404 (2d Dept 1988). 70 If Respondents did not displace Ms. Walsh's duty to evaluate whether she was too cognitively impaired to drive, then a cognitively impaired patient is expected to evaluate her own level of cognitive impairment- while being cognitively impaired- and while being seated in a hospital surrounded by trained professionals. Such a paradigm seems nonsensical. Indeed, Respondents were under a duty to warn Ms. Walsh not to drive: this warning had a specific safety function intended to protect Ms. Walsh, and protect Appellant. In other words, avoiding car accidents is the contemplation of a warning not to drive after the administration of narcotics. Cf Carpenter v. Blake, 75 NY 12,25 (NY 1878) (Stating that the defendant-physician "gave advice which was wrong and which tended to mislead and deceive her [the patient], I think he was responsible for such advice. He thereby assumed to act on her behalf and no valid reason exists why he should not be liable for the act.") The relevant legal issue for the 'displacement' analysis- as to Respondents- is not Ms. Walsh driving. Instead, the relevant legal issue is Ms. Walsh's choice to drive. Respondents assumed a duty that displaced Ms. Walsh's ability to 'chose' whether she should drive when Respondents administered medications and provided comprehensive services. 71 Point V: A duty should exist because Ms. Walsh detrimentally relied on the fiduciaries in a fiduciary relationship. "[T]he rule has been settled in this State that words as well as acts may serve as the premise for a negligence action." Heard v. City of New York, 82 NY2d 66, 73 (NY 1993). "A tort arising from a misrepresentation predominately applies to those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified." Kimmell v. Schaefer, 89 NY2d 257,263 (NY 1996). The Court has also placed strictures on the doctrine to determine when reliance is reasonable. (Id.) "Liability in negligence may rest on a defendant's nondisclosure, which misleads a third party and results in injury or damages to a plaintiff predicated on the fact that the misrepresentation or nondisclosure has lead the person to whom it was made to forego action that might otherwise have been taken for the protection of the plaintiff." Lauer v. City of New York, 95 NY2d 95,109 (NY 2000) (Bellacosa J.) (dissenting), citing, Eiseman v. State of New York, 70 NY2d 175, 187. 72 All reliance claims may not create liability. In a non-third party reliance case, this Court articulated the strictures of the 'reliance' doctrine as follows: A duty may arise from negligent words or acts that induce reliance ... It is not enough for plaintiffs to say that defendant could have prevented Heard's conduct by withholding permission. The issue is causality--in short, not what defendant could have prevented but what defendant proximately caused by inducing reliance . .. Though an issue of causality is usually a factual matter left to the jury ... Heard v. City of New York, 82 NY2d 66, 71-72 (NY 1993)(Emphasis Supplied.) One way to determine if a patient's reliance was reasonable is determining "[i]f defendant's prior conduct. .. had foreseeably lead" the patient "to change his own conduct- for instance, by giving him a false sense of security." Heard, 82 NY2d at 72-73, interpreting Nallan v. Helmsley-Spear, 50 NY2d 597. In this case, Respondents induced Ms. Walsh to drive impaired by not warning her not to drive, and induced her to drive impaired by discharging her in an impaired state. Otherwise said, Respondents' conduct led to Ms. Walsh changing her own conduct, and Respondents' conduct provided Ms. Walsh a false sense of security. According to Restatement Second of Torts §324A( c), third party liability can exist when harm arises from reliance of the other, or reliance from third persons upon the undertaking. (Emphasis Supplied.) See generally, McNulty v. 73 City a/New York, 295 AD2d 42 (1st Dept 2002), rev'd, 100 NY2d 227 (2003)( discussing Restatement Torts 2d §324A( c)); Tenuta v. Lederle Laboratories, 90 NY2d 606,613 (1997), citing, Restatement Torts 2d §324A(c); Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579,586 (NY 1994)(Duty when third-parties relied on the tortfeasor performing the duties of a global contract); Cf Restatement 3rd Torts: Liability for Physical and Negligence Liability, §43(c) (Replacing §324A(c)) (2012)(Stating that third-party liability could exist when "the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.") Consequently, according to §324A( c), if a patient detrimentally relies, then a third party duty could exist. While Cohen & McNulty hold that this Court will not mechanically apply §324A( c), those cases presented with distinguishable facts and less compelling 'reliance' arguments than this case. Notably, this Court has never ruled on a case where the physician removed a patient's ability to self-protect, and the patient detrimentally relied upon the physician's treatment or advice, causing the patient to commit a tort (if not a crime), that ultimately led to a traumatic accident injuring the patient and a third- paliy victim. 74 In McNulty, the reliance was from a non-patient, and the physician's fiduciary obligations were not implicated. Correspondingly, the physician did not have a professional duty to warn, nor professional relationship with the non- patient making the reliance less reasonable and of a lower qualitative nature. The primary purpose of the conversations in McNulty was to advise the patient's family and friends of the condition of the patient- and not to issue warnings to third-parties/non-fiduciaries. The significance of this fact is physicians' expectations of the meaning of the conversation are restricted and not focused on warnings. It is one thing to attach legal consequences to physicians' conversations with patients in the fiduciary relationship, and quite another thing to have legal consequences arise from every word physicians say and every question physicians answer to non-patients about medicine. Such an expansion of a physician's responsibilities would have meant every time a physician speaks about medicine he is a fiduciary. Moreover, the non-patient in McNulty was a registered nurse, and one of the relevant communications was when a physician was asked if meningitis was contagious, and the physician "shrugged his shoulders." A shrug of the shoulders is not a formal type of communication reflective of a formal relationship. This evidences that the physician did not believe the communication was a professional 75 responsibility, which could effect the physician's expectations of the purpose of the conversation and effect the level of care provided (i.e., if advice to non- patients is not a professional responsibility then there is no reason for physicians to treat such conversations as such.) In Cohen, while the reliance was by the patient and the non-patient wife, the reliance of the patient did not lead to the patient committing a tort (and/or crime), as herein, nor lead to a traumatic accident and/or 'abrupt cataclysmic' event that would cause the patient or non-patient more involuntary damage than the damage done in the medical treatment. As importantly, since the patient-husband had a medical inability to conceive children to start with, any reliance by the patient and non-patient wife had no 'causality' to any actionable harm- as the breach of the reliance placed the wife in the same position she was in to start with. So the reliance did not lead to a change in the wife's own conduct, as she would have had the IVF procedure ifher husband never sought treatment from the defendant- physician. 10 10 In contrast, in failure to warn cases arising from a natural pathology, the reliance of the patient is more reasonable, and the failure to warn may place the patient in a situation that he or she would not have been in but for the failure to warn and reliance on the physician. Additionally, it is more likely that the physician will have records pertaining to what was said or not said to a patient, allowing the physician to defend himself in litigation. In contrast, physicians do not typically keep charts pertaining to advice provided to non-patients. 76 So both Cohen and McNulty presented with low qualitative reliance arguments. Generally, Tenuto is factually distinctive from the case at bar. Yet, Tenuto implicated the physician's fiduciary obligations to the patient, and it follows that a duty existed in Tenuto with the Court relying upon §324A( c). In this case, the physician's breach of the fiduciary trust caused physical injuries to Appellant- and also caused physical injuries to the patient, Ms. Walsh. Consequently, this case implicates patients' rights on a higher level than Tenuto, McNulty & Cohen because in those cases the patients were not exposed to needless physical injuries themselves by the violation of their trust. 11 Generally, the medical community is aware that patients rely on the community's expertise. In contrast, the medical community, generally, renounces any duty to provide advice/knowledge to non-patient third-parties, so when a non- patient relies upon medical advice, the medical community's expectations and the non-patient's expectations are distinct. This point is reflected in the differing viewpoints of the parties in McNulty. II The deterrent effect of a duty in this case is 'doubled', and maximized, because injuries to two separate individuals can be avoided. 77 Yet, when a patient relies upon the medical community's expertise, the medical community's expectations and patient's expectations are generally identical (i.e., 'do no harm'). Consequently, when reliance places a patient into a harmful transaction, and a third-party is injured in the same harmful transaction, a legal third-party duty (i) is consistent with the medical community'S expectations of possible transactions the community intends to prevent, and (ii) is consistent with the medical community'S expectations of hazards the community is intended to prevent. Correspondingly, Ms. Walsh's bests interests- to avoid the crash- are linked and inteliwined with Appellant's best interests, ensuring no 'divided loyalty' by a third-party duty- under these circumstances. Of course, if the Court 'defuses' the patient-physician relationship of fiduciary obligations that protect patients, and if the law deems patients' reliance tangential, then eventually the medical community'S expectations will be that patients should not rely on them, and the quality of New York's medical treatment will reflect this belief. Admittedly, an overlap exists between detrimental reliance arising from the fiduciary relationship (§324A(c)) and the control doctrine- as each doctrine applies to this case. This is because control based on dependency is probably a form of reliance- as such control arises from absolute reliance. Otherwise said, 78 control arising from dependency is the most extreme form of reliance. Thus, all reliance may not lead to 'control', but control based on dependancy is always a form of reliance. Control based on dependancy is probably the purest form of control. This is because there is no opposition to the control. Actually, the 'actual control' in this context is superior to the' actual control' in the psychiatric context because of the lack of opposition from the patient in this context. The fact that both the control and reliance doctrines are satisfied- and the two doctrines have an overlap in this context- is not reason to restrict either doctrine- and in fact is more reason to recognize a legal duty. 12 At its core, the effect of detrimental reliance upon the intermediary is to remove the intennediary's ability to self-protect, which is why the Restatement of Torts states that if detrimental reliance exists, then a third-party duty may exist. 12 In the psychiatric context, such as cases as Eiseman, arguably, the psychiatric patient also detrimentally relies upon the physician's fiduciary obligations to regulate the patient's psychiatric condition. Yet, a much more tenuous connection exists between the intentional tort of a psychiatric patient and the breach of fiduciary obligations and detrimental reliance to regulate the psychiatric illness. Otherwise said, an intentional t011 is (1) mostly due to the psychiatric patient's underlying illness, and (2) possibly, pm1ially the breach of the detrimental reliance, while a negligence tort of a patient, as herein, is totally because of Respondents' breach of the patient's detrimental reliance and breach of Respondents' fiduciary obligations. 79 In this case, Ms. Walsh's ability to self-protect was inhibited through two separate mechanisms: (1) her detrimental reliance upon the Respondents' knowledge, expertise, & fiduciary obligations; and (2) the cognitive impairment created by mind-altering narcotic drugs. In most other medical contexts where drugs are not directly administered, only one of the two mechanisms exist. A finding that Ms. Walsh's detrimental reliance creates a duty in this case comes reasonably under the jurisdiction of McNulty's' arise because of the doctor's treatment of the patient.' Point VI. The Court should hold that Tenuto did not create an algebraic formula that requires a victim prove that a medical tortfeasor violated Restatement of Torts §§324A(a),(b), & (c). Throughout the Court's third-party duty cases in the medical context, the Court's decisions are somewhat vague (seemingly intentionally so as to allow the law to evolve), and unraveling the controlling principles of law articulated in the precedent is not as simple as with other cases. In the seminal case of Tenuta v. Lederle Lab, 90 NY2d 606, 611-612, this Court found a medical malpractice duty and negligence duty existed to a third- patiy parent. Yet, the Tenuta decision did not unequivocally articulate what factors relate to what claim. 80 Generally, third-party liability in tort can exist by either Restatement Second of Torts §324A(a),§324A(b), §324A(c) (See, Espinal v. Melville Snow Contractors, 98 NY2d 136, 140); and the 'control' special relationship doctrine. As to the negligence analysis, in Tenuto, the Court explicitly relied upon §324A(c). Yet, the facts of the case also satisfied §324A(a) & §324A(b), as the Court recognized in McNulty. Although McNulty did not cite to the Restatement of Torts, McNulty noted that in Tenuto the vaccination "created the serious risk of physical harm" (§324A(a)), and that the pediatrician provided "comprehensive services" (§324A(b )). Additionally, depending on the legal test for 'control', Tenuto also satisfied that test: so Tenuto had facts that satisfied either three (3), or all four (4) third-party tort doctrines. As to the malpractice analysis, Tenuto allowed a malpractice claim, which is a hybrid tort and breach of contract claim, probably because either (1) the parents hired the pediatrician and/or were in privity, (2) or because the father was an intended beneficiary. This Court has never explicitly defined what legal factors in Tenuto peliained to the negligence claims and what legal factors pertained to the malpractice claims. 81 As importantly, this Court has never addressed whether Tenuta created an algebraic formula in the medical context pertaining to a negligence common law claim requiring a plaintiff to satisfy §324A(a),(b ),( c), or if Tenuta merely ruled on the facts presented, and if McNulty's commentary on Tenuta merely pertained to a statement that the antecedent course of conduct in Tenuta was qualitatively strong. Respondents will propose that a de facto algebraic formula does exist in the medical context, yet, in all other aspects of tort law, a third-party duty exists if a plaintiff satisfies one of the three §324A standards. It is true that in some circumstances by pure luck all three §324A sections may be satisfied by happenstance- as here. Yet such a lottery type standard fails to fulfill tort law's purpose of deterring societal or professional unwanted behavior because it intermingles tort principles such as §324A(a)(actions) and §324A(c)(words) that quite often have no causal nexus, thereby making application of the standard arbitrary and unpredictable. Generally, Restatement Second of Torts §324A(a),(b),(c) all provide for third-party liability because inherently dangerous situations exist if circumstances exist that fulfill one of the three distinct legal doctrines. If §324A( c) is satisfied, then an individual or intermediary's ability to self-protect is impaired through detrimental reliance. If §324A(b) is satisfied, then an individual or intermediary's 82 ability to choose or think reasonably is impaired by the intermediary's reliance on a comprehensive contract or 'displacement.' If §324A(a) is satisfied, then a tortfeasor's affirmative actions have created needless danger for others. The inequities created by the satisfaction of any of the three distinct legal doctrines is generally why tort liability exists under §324A. It is unclear why this foundation is invalid in the medical context, as Respondents will urge. Or if facts exist that satisfy § 3 24 A( a), and create needless danger, why New York should deem the needless danger as necessary for the operations of the medical business of New York. In effect, if the Court creates a mandatory rule that requires a third-party plaintiff prove that a medical tortfeasor violated all three sections of §324A, then such a legal rule implies that medical tortfeasors can take actions that cause danger, destruction & harm to others that is unacceptable in all other contexts of our society. Such a legal rule implies that medical tortfeasors have a legal right to cause harm that no one else in society is allowed to inflict. It is unclear why a medical license would create such legal status. While Cohen & McNulty found that facts that may have satisfied §324A( c) were insufficient to create a duty- upon weak reliance arguments- this is best interpreted to mean that t0l1 principles are not considered in a vacuum. Cohen & 83 McNulty are best interpreted to mean that if a tort principle is applicable- to the extent any were in those cases- then this does not 'automatically' establish a duty. There is a crevasse size difference between a finding that a tort principle does not 'automatically' establish a third-party duty as oppose to a finding that a third-party plaintiff is mandated to satisfy §324A(a),(b),(c). Point VII: The Court should reject an analysis that a personal injury negligence duty has an intended beneficiary restriction. At the appellate level, the Respondents asserted and/or insinuated that in Cohen v. Cabrini Med. Ctr., 94 NY2d 639, and other non-medical launching of harm cases, this Court interlocked the launching of harm doctrine and 'intended beneficiary' doctrine because the Court noted that "purpose of the procedure" done on the patient was to benefit the patient in Cohen, and not the third-party, and therefore a duty did not exist. At the appellate level, Appellant asserted that a plaintiff can recover under either the launching of harm doctrine, or the intended beneficiary doctrine, so Cohen did an analysis for both doctrines. This COUl1 has explicitly rejected an intended beneficiary analysis in determining negligence duty in non-medical cases. See, Strauss v. Belle Realty Co., 65 NY2d 399 (1985); Espinal v. Melville Snow Contras, 98 NY2d 136; Palka 84 v. Servicemaster Management Servs. Corp., 83 NY2d 579,586 (NY 1994); MacPherson v. Buick Motor Co., 217 NY 382,393 (NY 1916).13 Respondents' merging of §324A(a)/launching of harm into the intended beneficiary doctrine would have the functional effect of, firstly, abolishing §324A(a)/launching of harm in the medical context since §324A(a)'s application is wider in scope than the intended beneficiary doctrine. If the Court merges §324A(a) and the intended beneficiary doctrine into one doctrine, then the new §324A(a) doctrine will have basically a similar application as the previous intended beneficiary doctrine. Secondly, adding further tort restrictions upon the pre-existing 'intended beneficiary' contract doctrine, such as personal reliance, would truncate dramatically the jurisdiction of the 'intended beneficiary' doctrine. So actually Respondents are not just trying to abolishing tort law: they also want contract law partially rescinded. Yet, Respondents' radical, anti-victim view should be rejected, as it has previously been rejected by this Court on multiple occasions in different contexts. 13 As previously stated, Cohen does not qualify as a launching of harm case in a traditional sense. For Respondents to assert that a case that does not qualify as a launching of harm case in a traditional sense is also a case where the doctrine was radically altered is questionable interpretation of precedent. 85 In Tenuta, the Court relied upon §324A( c). In McNulty, the Court discussed factors pertaining to and/or arising from the substance of §324A(a), §324A(b), §324A( c). McNulty also framed said discussion in relation to determining the issues of that case, and in relation to interpreting Tenuta. If the Court intended on using a contract analysis in tort cases in the medical context, it is unclear why the Court would conduct a torts' analysis in McNulty & Tenuta. In McNulty, the third-party plaintiff-friend who was allegedly told by the physicians that meningitis was not contagious was the 'intended beneficiary' of the conversation and/or 'intended beneficiary' of any warning/lack of warning, yet no duty existed in McNulty. Respondents' briefs will skip over this fact. Actually, one could argue that McNulty outright rejected an intended beneficiary analysis, which is why a duty did not exist. (Though since McNulty never discussed an intended beneficiary analysis- and focused on a torts' analysis- such an argument is speCUlative.) Indeed, Respondents' intended beneficiary/merging of doctrines argument does not arise from this Court's precedent. Cj Restatement 3rd Torts: Liability for Physical and Negligence Liability, §43 (Replacing §324A), cmt. (h) (2012)("The duty imposed by this Section is independent of any contractual obligations ... The duty ... exists ... regardless ... whether the plaintiff is a third-party beneficiary of 86 the contract. .. This Section does not address whether a duty exists when a person suffers only economic harm.") Respondents' intended beneficiary analysis is inconsistent with the Court's tort approach utilized in the psychiatric 'control' cases. See generally, Dunn v. State, 29 NY2d 313 (1971); Januszko v State, 47 NY2d 774 (1979); Williams v. State, 18 NY3d 981 (2012); Fox v. Marshall, 88 AD3d 131,137-138 (2d Dept 2011); Rattray v. State, 223 AD2d 356,357 (1st Dept 1996); Winters v. New York City Health & Hasps. Corp., 223 AD2d 405 (1 st Dept 1996); Jones v. State, 267 AD 254, 257 (3d Dept 1943); Weihs v. State, 267 AD 233,235 (3d Dept 1943). In their Second Department briefs, Respondents asserted that the psychiatric cases were based on an intended beneficiary analysis because the State's mental hygiene laws were intended to protect the public. (See, Hammock's Brief at 17- 18)("Protection of persons other than the patient is specifically contemplated by the [mental hygiene] statutory scheme.") Respondents created such an argument to attempt to create an illusion that this Court has not utilized tort principles in determining tort issues in tort cases. Irrespective, Respondents' interpretation of the psychiatric cases is flawed. If Respondents' argument was valid, then every citizen in this state is an 'intended beneficiary' of the mental hygiene laws. It is mind-blowing that Respondents are 87 advocating for a 'class' of intended beneficiaries of approximately eight million five hundred thousand (all the citizens of the state). Compare, Metz v. State of New York, 20 NY3d 175 (NY 2012)(Finding boat passengers on a boat were not an intended 'class' ofa boating permit statute); C/, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §41, cmt. (g) (2012)(Statingthat the 'control' Restatement "sets no limit on those to whom the duty is owed.") If the Court accepted Respondents' 'intended beneficiary' interpretation of the psychiatric cases, and in a future case an escaped psychiatric patient injured fifty (50) non-patients, it is doubtful that Respondents would advocate for an intended beneficiary analysis. More likely is that Respondents would request that this Court overrule the analysis that Respondents are now advancing in this case. A primary flaw in Respondents' argument is a refusal to acknowledge or understand that §324A liability arises from societal obligations, and not contractual obligations. "The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contact obligation, and the breach of that independent duty will give rise to a tort claim." New York Univ. v. Cont 'I Ins. Co., 87 NY2d 208. 88 The 'public interest in seeing' medical contracts appropriately performed is not extinguished if Respondents hUli foreseeable victims who are not intended beneficiaries. Point VIII: A duty should exist because the class size of 'actual victims' is only one. In Strauss v. Belle Realty Co., 65 NY2d 399 (1985), this Court refused to find that a legal duty existed in a personal injury action arising from a Con Ed black-out. The Court's direct basis for its holding was because of 'public policy.' The Court's indirect reason was because a duty in the matter could create millions of third-party victims- from one single event- thereby creating 'crushing' economic exposure. See, Milliken & Co. v. Consolidated Edison Co., 84 NY2d 469 (1994) (Applying Strauss' reasoning to limit the scope of duty regarding claims of economic loss); 532 Madison Ave. Gourmet Foods Inc. v. Finlandia Ctr., Inc, 96 NYS2d 280 (2001 )(Same). In contrast to Strauss, in the case at bar, there is only one third-party plaintiff who was directly injured by the Respondents' negligence, indicating there is not 'crushing' economic exposure in this case if a third-party duty exists. One third-pmiy plaintiff is the smallest possible third-pmiy class of' actual' victims. 89 One third-party plaintiff is not a "prohibitive number of possible plaintiffs." See, McNulty v. City a/New York, 100 NY2d 227, 232-233 (2003). In relevant precedent, nothing indicates or dictates that the evaluation as to whether a tort leads to a 'prohibitive number of possible plaintiffs' cannot occur after the tort or action has occurred. Otherwise said, precedent does not forbid- or speak to- an evaluation of 'actual' victims as oppose to 'theoretical' victims. By conducting the analysis after the tort or action has occurred, it allows a more tailored, fact specific, and evidence-based analysis. Cj, DiPonzio v. Riordan, 89 NY2d 578, 583 (NY 1997) (Noting that the "nature of the [ duty] inquire depends, of course, on the particular facts and circumstances in which the duty question arises"); Fox v. Marshall, 88 AD3d 131,136 (2d Dept 2011)(Noting determinations of whether a duty exists with mental health care providers is done on a "case-by-case basis.") Although Strauss is a rare case where class size of 'actual' victims was discussed in the published decision, arguably, class size of 'actual' victims was implicitly considered in almost every duty case in this Court's history, since this Court rightfully evaluates public policy, and the public policy analysis encompasses an economic analysis, which is partially dependent on the class size of actual victims. 90 The concept that total economic exposure be determined after a tort or action occurred is well known to the common law. For example, if an obstetrician commits negligence, causing damage to a fetus, the total economic exposure from the negligent act will not be known at the time of the act. The baby may (1) pass away within minutes of birth, causing lesser economic exposure; (2) the baby may sustain a brain injury causing greater economic exposure, and the significance of the brain injury may not evolve/be known until 5-6 years after the tort/act. Consequently, waiting until after an act/tort to know the full economic exposure arising from a wrongful act is quite common. It, arguably, occurs in every case. In contrast, it seems close to impossible for this Court to create reasonable context-specific theoretical 'restricted' classes for all third-party cases in all contexts, as the Court did with 'family members' in the contagious disease medical context. Secondly, conformity would probably never exist between one 'restricted' class when compared to another 'restricted' class in a different context. Thirdly, even if a theoretical 'restricted' class is created, it seems the class size of 'actual' victims is still the meaningful factor. For example, in Palka v. Servicemaster Mgmt. Services Corp., 83 NY2d 579,589 (1994), this Court found that hospital employees, patients and visitors were a "known and identifiable" third-party class. If, hypothetically, twenty (20) employees or patients sustained 91 traumatic brain injuries, is the Court going to hold a tortfeasor liable for a sustainable $300 million dollar verdict from one negligent act, because the plaintiffs fall under the jurisdiction of the 'abstract' class? Or for example, if a physician injects a vaccine into a patient, fails to warn of the possibility that the vaccine could cause polio in others (similar to Tenuta), leading to eight (8) of the patient's siblings getting polio, resulting in paraplegia, is the Court going to hold the physician liable for $100 million dollars from that one negligent act? If the answers to the above questions are no, and if the answer is the meaningful factor in those hypotheticals are the class size of 'actual victims', then what is the purpose of creating or evaluating for these abstract, theoretical classes? Why not make the 'actual' victim class the controlling class in all third-party cases across the board? On the surface, it might seem that creating 'theoretical' restricted classes creates more 'certainty' to the law- in some way- because the classes are set before the act/tort occurs, and/or provides some form of notice to the tortfeasor, or industry. Yet, this is probably not so. Specifically, when the act/tort occurs a tortfeasor has no guarantee that a member of the third-party class will be injured: this occurs after the act/tort. Secondly, the theoretical restricted classes do not relate to the underlying 'act' (i.e., such a class does not dictate the standard of care 92 or how to appropriately proceed in a certain situation). The 'theoretical' class merely relates to who can recover from the underlying act and limits economic exposure- and an 'actual' class would do the same. Arguably, in Tenuta, even when the Court discussed the abstract family class rule, the class of 'actual' third-party victims- which was only one (1)- was the meaningful class. If the 'actual' victim class was different, then the Court's holding might have changed. Putting aside any specific analytical formula used in a certain third-party 'duty' case, it is probably more than coincidental that in the majority of third-party duty cases, the class of 'actual' victims is either one or two. The lack of pragmatic utility of theoretical 'restricted' classes is possibly why it is not a factor in a significant amount, ifnot majority, of 'duty' cases, including the psychiatric 'control' cases. On a micro level, it is somewhat arbitrary- if not perverse- that the more 'actual' victims harmed by a tortfeasor in a specific case, then the more legal protection the tortfeasor is allotted. (Which is, basically, the implicit state of the law with 'abstract' classes, as 'abstract' classes will not be created unless they restrict the amount of possible victims). Yet, on a macro level such a holding makes sense, if such a holding allows numerous other 'actual' victims to recover 93 in other cases. Otherwise said, if the choice is either to foreclose the legal system to 'some' third-party victims, or foreclose the legal system to 'all' third-pmiy victims in a certain context, then it is more reasonable to allow some third-pmiy victims access to our legal system. By allowing some 'actual' third-party victims to recover- even if the Court cannot allow all third-party victims to recover- it strengthens any underlying policies that are advanced by the existence of a duty. For example, in this case, by allowing Appellant to recover, the Court's holding would strengthen policies against drug impaired driving, regulation of dangerous pharmaceutical, enforcement of fiduciary obligations, etc. In contrast, if the Court uses an 'all or none' analysis, then all the above policies of this State are permanently weakened and permanently undermined if there is no duty. Admittedly, if there is too much economic liability to a tortfeasor, then the net effect could become unduly inhibitive. Since this Court has held privity does not define duty- in accordance with various other States and the Restatement of Torts- compensating one third-pmiy victim does not create an unduly inhibitive economic loss. Contrast, Barry R. Furrow, The Patient Injury Epidemic: Medical Malpractice Litigation as a Curative Tool, 4 Drexel L. Rev 41, 54 (2011) 94 ("Lawsuits can be powerful tools of deterrence if they capture the maximum number of valid claims possible.") If it is deemed that one third-party victim creates too much economic loss or 'crushing' exposure, then arguably, the Court's holding that privity does not define duty rings hollow. Cf Restatement 3rd Torts: Liability for Physical and Negligence Liability, §41, Reporters' Notes, cmt. (h) (20 12))(Noting that Ultrameres' concern of limitless liability does not transport to personal injury claims because "in all likelihood" the claim is limited to a single accident and "physical harm simply does not travel as widely as economic loss"); Wharton Transport Corp v. Bridges, 606 Sw2d 521, 528 (Tenn 1980) (Upholding a third- party duty- via contribution claims- when a physician negligently certified a truck driver fit to drive commercial trucks and distinguishing Ultramares.) 14 Point IX: A finding of a duty advances significant state policies and interests. According to Professor Barry R. Furrow, Modern medicine is dangerous. A recent study concluded that patients suffer adverse events in one-third of all admissions. The famous Institute of Medicine (10M) report, To Err is Human, extrapolated from earlier 14 Since the Court has not used a 'restricted' class analysis in 'control' cases, and the Appellate Divisions have not used such an analysis in launching of harm cases, this COUli could deem Appellant's 'actual' victim class argument academic. 95 close claim studies to predict almost 100,000 patient deaths annually due to medical errors. This extrapolation may in fact have seriously underestimated the incident of injuries. More recent studies have confirmed that adverse events occur at higher levels than previously thought. While the Harvard data were based on hospital records, studies analyzing the actual incident of negligent events in hospital wards found that many injuries were not reported in hospital records as required- especially when the main person responsible for the error was a senior physician. Patients are killed or injured in hospitals because of system design shortcomings, failures of coordination, and plain old physician and nurse mistakes. Health care institutions, and their doctors and nurses, injure and kill patients one at a time- unlike pilots in airplane crashes. This statistical phenomenon of scattered casualties over more than five thousand hospitals and thousands of outpatients clinics diffuses the visibility of harm and fogs out awareness of the volume that occur. .. In spite of this growing evidence of patient injury, in no other area of civil law has reform pushed so aggressively against the tool of litigation on behalf of injured plaintiffs, even with evidence of substantial underclaiming by patients who suffer adverse events. (See, Barry R. Furrow, The Patient Injury Epidemic: Medical Malpractice Litigation as a Curative Tool, 4 Drexel L. Rev 41,45-47 (2011). Correspondingly, "The issue [of drug impaired driving] is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving ... Now we're into this prescription drug era ... " Goodnough & Zezima, Drivers on Prescription Drugs Are Hard to Convict, NY Times, July 25,2010,2010 WLNR 14776442. 96 Tort law's purpose of deterrence of misbehavior is met by economically penalizing the tortfeasor. "The reason why tort liability promotes patient safety is obvious ... Providers are rational. When injuring patients becomes more expensive than not injuring them, providers will stop injuring patients ... In short, the notion that errors would decline if tort liability diminished is ridiculous.,,15 This Court has recognized that two important policies in a policy analysis are compensation of victims and deterring future misbehavior. Crosland v. New York City Transit Authority, 68 NY2d 165, 170 (NY 1986). See, Lauer v. City of New York, 95 NY2d 95,112 (2000)(Smith, J.)(Dissenting)(Stating liability "would emphasize to those who fail to use care that there are consequences for their actions.") "[T]he purposes of tort law include to give compensation, indemnity, or restitution for harms and to punish wrongdoers." Paroline v. United States, 134 S Ct 1710, 1740 (US 20 14)(Sotomayor J.)(Dissenting), citing, Restatement 1st of Torts §901, p. 537 (1939). Cf Medtronic v. Lohr, 518 US 470, 513 (US 1996) 15 See, Maxwell J. Mehlman & Dale A. Nance, Medical injustice: The Case Against Health Courts, P48, (American Association for Justice 2007), available at https:llwww.justice.org/sites/default/files/file-uploads/The_Case_Against_Health _ Courts_1_ O.pdf 97 (O'Connor 1.)(Dissenting In Part)("The threat of a damages remedy will give manufacturers an additional cause to comply.") "The functions of tort liability can be summarized in four important values. Tort liability (1) reinforces good medical practice; (2) articulates new duties of care; (3) gives voice to mistreated patients; and (4) exposes obtuse organizations ... Many liability doctrines shine a bright light on less than salutary health care practices." Barry R. Furrow, The Patient Injury Epidemic: Medical Malpractice Litigation as a Curative Tool, 4 Drexel L. Rev 41, 56 & 63 (2011). "[T]he damage provisions of the Emergency Medical Treatment and Active Labor Act have forced stabilizing treatment by hospitals inclined to simply push patients out the door through civil damages remedies." (Id.) In the context of this case, tort law's deterrence function has utility. According to Professor Marc Rodwin, Lawyers are regulated by extensive court rules and ethical codes. . . There is no equivalent oversight for physicians ... Some [licensing] boards sanction physicians for 'character unbecoming of a physician,' but only where there is fraud, criminal conviction, or other egregious conduct. .. Hospitals increasingly monitor physician behavior through quality assurance programs ... Too often quality assurance programs are used mainly to control use of services that are costly to hospitals under Medicare's prospective payment system . . . the AMA has an ethical code ... [but] the AMA lacks 98 institutions or sanctions to ensure compliance. See, Marc Rodwin, Strains in the fiduciary metaphor: divided physician loyalties and obligations in a changing health care system, 21 Am. J. L. and Med. 241, 247-250 (l995). Cf Bill Jacket to L 1975, ch.l 09, 4/21/75 Letter from Mr. Joseph T. King- Chairman of the Committee on Discipline- to Governor Carey, P3 ("The professions have not been authorized to be self-regulated ... No convincing analysis has reached that conclusion.") "[T]he State carefully regulates the licensing of physicians and other health care professionals and monitors such activities to prevent untoward consequences to the public from the ministrations of incompetent, incapable, ignorant persons." Ash v. New York Univ. Dental Care, 164 AD2d 366,269-70 (lst Dept 1990). While the State ensures that the public's interest is protected by requiring certain licensing occurs before a physician practices medicine in the State, tort law is the main, pragmatic, protection of Society'S interest against incompetence after physicians commence practicing in the state. (Emphasis Supplied.) Correspondingly, the Legislature's ability to adequately regulate physician's conduct after they commence practicing medicine is dubious, when considering physicians' decisions are determined by the standard of care and patients' presentations- which are fact specific. See, Reis v. Volvo Cars of N. Am., 2014 NY 99 LEXIS 1526 (NY 20 14)("Generally, the standard of care for a physician is one established by the profession itself.") In Ash, the First Department noted: "It is the strong interest of the state in the health and health care of its citizens which gives the state the right to regulate the health professional. The right to practice medicine is a conditional right which is subordinate to the state's power and duty to safeguard the public health, and it is the universal rule that in the performance of such duty and in the exercise of such power, the state may regulate and control the practice of medicine and those who engage therein." Ash,164 AD2d at 373. While Ash is a case that pertains to exculpatory clauses, it recognizes a principle and policy that is under-focused upon. Some third-party duty precedent discusses what 'could' be lost with an expansion of duty, usually (1) assuming the worst possible case scenario and (2) assuming this worse possible case scenario is likely to occur, when it is not likely to occur. Such types of arguments have been described by sister states as veiled 'threats' of the medical industry against society if the medical industry is held legally accountable. See, Taylor v. Smith, 892 So.2d 887, 896 (Ala 2004), citing Gooden v. Tipps, 651 SW2d 364, 373 (Tex Ct App 1983). 100 Yet, few cases discuss the professional and societal gains that could occur by an expansion of duty. Hospitals and physicians, undisputedly, have a special role in society. The medical community typically argues that this societal special role requires that they must have greater legal protection than everyone else in society. Yet, in many contexts, the opposite is probably true, and society is benefitted if the medical community accepts or is allotted 'greater responsibility' because of its invaluable role. Ash recognizes this principle. Indeed, the principle Ash espouses is the same principle that underlies the creation of the legal 'standard of care.' Placing more legal responsibility on physicians indirectly raises the bar, and once diligent physicians and educated hospital administrators adjust to such a raised bar, as they will, which is why they are physicians and administrators, then better treatment is shared by all New Yorkers. So not only could a duty deter misbehavior, yet even better it could actually create and stimulate improved behavior, and improve treatment. 16 16 It is well-known that tOli lawsuits helped stimulate meaningful safety changes in the field of anesthesia. Cf George 1. Annas, 1.D., M.P.H., "The Patient's Right to Safety Improving the Quality of Care through Litigation against Hospitals," New England Journal of Medicine, N Engl 1 Med 354; 19 at 2065, May 11, 2006, available at http://www.isabelhealthcare.com/pdf/NE1M _ Patients _ Right_ May2006.pdf 101 In contrast, if the Court limits the accountability of the medical tortfeasors, then a penalty for violation of safety rules is removed, and indirectly the safety bar for the medical industry is lowered. If Respondents prevail, safety requirements pertaining to drug impaired driving prevention are lowered in an era where New York has witnessed an onslaught of drug impaired driving. VL T § 1192( 4) was passed because "[i]t is just as dangerous to operate a motor vehicle while one's ability to drive is impaired by a drug or narcotic, as it is to operate a motor vehicle while under the influence of alcohol." People v. Litto, 8 NY3d 692, 702 (2007). Generally, "[t]he importance of the governmental interest in deterring drunk drivers is beyond question." Alami v. Volkswagen of Am., 97 NY2d 281,285 (2002). Intoxicated drivers have been labeled a "menace to the public." People v. Kelley, 141 AD2d 764, 765 (2d Dept 1988). It seems to follow that drug impaired drivers are also a "menace to the public," and the State's interest in deterring drug impaired driving "is beyond question." Yet, this Court has rarely discussed drug impaired driving policies and their significance in this State. According to Professor Tina Wescott-Cafaro, efforts to stop drug impaired driving pale in development, funding, and focus when compared to efforts to stop drunk driving. See, Wescott-Cafaro, Slipping Through the Cracks: Why Can't We 102 Stop Drugged Driving, 32 W New Eng L Rev 33, 33-35 (2010). This lack of focus is so even though the Institute for Behavior and Health (IBH) estimates "twenty percent of crashes are caused by drugged driving. That translates into 8,600 deaths, 580,000 injuries, and $33 billion in property damage each year in the United States." (Id. at 35). The lack of focus is so even though "in some instances, licit (legal) drug use more than doubles the risk of involvement in motor vehicle accidents." Id. at 54-55, citing, Marcelline Burns, Medical-Legal Aspects of Drugs 153 (2003) atP170. Professor Wescott-Cafaro's insight is proven by a mere review of New York Appellate cases. Despite the State's significant interest in deterring drug impaired driving, only a minuscule number of cases discuss the State's interest in doing so. Contrast, Andrew Keshner, Suffolk D.A. Launches Vehicular Crimes Unit, NYLJ, February 21,2012 ("Suffolk County District Attorney's Office has created a vehicular crimes unit, spanning several bureaus, in response to a rise in incidents of driving under the influence of prescription drugs ... the new unit is a response to a rising problem of drugged driving ... ") While this COUli has always held that a third-patiy duty analysis in the medical context requires an evaluation of the competing principles at stake, the Court has rarely atiiculated what policies or principles could suppOli the existence 103 of a third-party duty in the medical context. Tenuto is one of the rare cases where the Court articulated a policy interest significant enough to impact the duty analysis. See, Tenuto v. Lederle Laboratories, 90 NY2d 606,614 (Noting if there was not a third-party duty, then FDA warnings would be 'meaningless'). Notably, the same policy interest that impacted the Tenuto duty analysis- making FDA warnings 'meaningless' - is germane to the duty analysis in the case. In contrast, most of the policy arguments asserted by the medical industry twenty to thirty years ago have been debunked and refuted by time, evidence, and studies. Cj Douglas McKeon, New York's Innovative Approach to Medical Malpractice, 46 New Eng L Rev 475, 483 (20 12)(Noting approximately 40% of New York's malpractice costs pertain to obstetrical brain damage baby cases); Kessler & Fahrenkopf, The New York State Medical Indemnity Fund: Rewarding tortfeasors who cause birth injuries by rationing care to their victims, 22 Alb LJ Sci & Tech 173, at F.N. #2 (20 12)(Noting "that medical malpractice insurance is, by a wide margin, the most profitable line of property and casualty insurance"); Michelle M. Mello et. ai., National Costs of the Medical Liability System, 29 Health Aff. 1569, 1575 (201 O)(Estimating that the total costs of defensive medicine was less than 2% of overall healthcare costs). 104 Appellant proposes that this Court hold that the root-cause 'source' of the tort is accountable in this matter. In contrast, Respondents will propose that this Court grant the root-cause 'source' immunity. Built into Respondents' immunity argument is their belief that this Court will redistribute their accountability and responsibility in the following ways: (1) shifting drug impaired driving prevention measures onto police departments, thereby draining those State resources; (2) shifting medical expenses for victims onto the public purse, Medicare & Medicaid, and private insurance companies that have no connection to Respondents; (3) shifting loss wages of victims onto other governmental entities or private insurance companies that have no connection to Respondents; (4) and extinguishing victims' rights to compensation for pain and suffering. Respondents will assert that such a redistribution is the only way the Court can ensure that New York's medical industry operates competently. As to Respondents' policy analysis, in their briefs, Respondents will present this Court with arguments- no matter whatever fonn they take- that will advocate for jurisprudence that embraces two principles. The first principle is that patients and society should not trust or rely upon the competency of Respondents. Any holding in Respondents' favor will forward this principle. The second principle is that the obligations from Respondents' carelessness must be reallocated to 105 everyone else, and everyone else has assumed responsibility for Respondents' carelessness. Respondents' arguments will embrace these tOliuous principles of distrust and redistribution, because their arguments must. Point X: High courts of sister states have found a duty under similar facts when medications are administered. Various out-of-state courts have analyzed the issue of whether the administration of medications- in various contexts- could give rise to a third-party duty. It seems the majority of courts have concluded that a third-party duty should exist- at least in some form. See, Taylor v. Smith, 892 So.2d 887 (Ala 2004)(Duty to third-party motorists when an outpatient is administered methadone at aclinic); Robinson v. Health Midwest Development Group, 2001 Mo. App. LEXIS 352 (Mo App 2001 )(Duty to warn to road travelers where patient is administered medications in Emergency Department); Wilschinsky v. Medina, 108 NM 511, 517,775 P2d 713 (N.M. 1989) ("The duty specifically extends to persons injured by patients driving automobiles from a doctor's office when the patient has just been injected with drugs known to affect judgment and driving ability"); Welke v. Kuzilla, 144 Mich App 245,252,374 NW2d 403 (1985) (Duty to road travelers where physician injected a patient with an 'unknown substance' the day before the accident); Cf Joy v. E. Me. Med. Ctr., 529 A2d 1364, 1366 (Me 1987)(Duty to 106 road travelers to warn where E.R. physician placed an eye patch over one of the patient's eye for treatment purposes); Cheeks v. Dorsey, 846 So.2d 1169 (Fla Dist. Ct. App. 2003) (Finding duty to third paIiy road travelers where a patient who was a known drug user was administered methadone); But See, Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill2d 507 (Ill 1987); Shortnacy v. North Atlanta Internal Medicine, 252 Ga. App. 321 (Ga. App, 2d Div 2001) (Finding no duty after medications were administered because allegedly a 'divided loyalty' would result if a third-party could recover if a physician failed to fulfill his obligations to his patient and failed to warn the patient not to drive). In Hoen v. United States of America, 217 FSupp2d 39 (Dist. Ct. Col. 2002), the federal district court for Columbia found that administration of LV. drugs at a hospital created a third-party duty to warn, but not a duty to 'control'. Hoen's 'control' analysis pertained to Restatement Second of Torts §319. 17 17 Section §319 states: "One who takes charge of a third person whom he knows or should know to be likely to cause body harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Section §319's commentary states the section applies to two classes of individuals, including a class "who has a peculiar tendency so to act [with "injuriously" tendencies] of which the actor from personal experience or otherwise knows or should know." Section §319's Illustrations reference a situation where a patient with a "contagious disease" is ''permitted to leave the hospital with the assurance that he is entirely recovered," eventually transferring the contagious disease to a non-patient, creating a duty upon the hospital for its failure to control. (Emphasis Supplied.) 107 Hoen's analysis of §319 hinged on the interpretation of 'dangerous propensities.' (Id. at 47-48.) Hoen distinguished 'dangerous propensities' from 'dangerous situations,' and therefore §319 did not apply with cognitively impaired patients who created 'dangerous situations.' Hoen's narrow definition of 'dangerous propensities' is questionable, and Hoen might have pivoted its entire analysis on a difference that is without distinction. In essence, Hoen construed 'dangerous propensities' to mean that the patient or patient's body created the risk of harm without any interaction with any context (i.e., a psychiatric victim is dangerous even without a knife, or contagious disease emanates from a person's body). Such a narrow interpretation of' dangerous propensities' (or 'to act injuriously', to use the wording utilized in the Restatement Comments) forgets that a psychiatric patient or patient with a contagious disease must be around other individuals to harm them- so context is not completely irreverent. Obviously, an escaped psychiatric patient will interact with people in society. Yet, it is argua.bly as obvious that patients have to travel to and from hospitals. Admittedly, if a risk of harm originates from the person's body, then there is more likelihood of 'notice' of the risk of harm to the medical tortfeasor. Even though this is true, if the t0l1feasor has 'notice' of the risk of harm through other means, then it makes little sense to construe 'dangerous propensity'I'to act 108 injuriously' so narrowly as Hoen did. The only reason to construe 'dangerous propensity' /'to act injuriously' so narrowly is if the analysis is an 'all or none' analysis where there must be notice in all cases and §319 must apply in all similar cases, or §319 must never apply in all similar cases. Yet, sometimes notice may exist, and other times it may not. In fact, §319 states it applies when the tortfeasor "knows or should know" the third person is "likely to cause body harm." The Restatement does not have a qualification that the tortfeasor must learn or must know about the possible harm only through information related to the disease. In actuality, Hoen added qualifications to §319 under the guise of interpretation. Indeed, §319 does not state the tortfeasor cannot apply common sense to the situation at hand. In contrast to Hoen 's analysis, according to Restatement Second of Torts §302A, cmt. U): "The actor is required to know the common qualities and habits of human beings, in so far as they are a matter of common knowledge in the community. The actor may have special knowledge of the qualities and habits of a particular individual, over and above the minimum he is required to know. His act or omission may be negligent because it involves an unreasonable risk of harm to another through the intervention of conduct on the part of the other, or of third persons, which a reasonable man in the actor's position would anticipate and guard against. .. 109 In effect, Hoen 's control analysis refused to incorporate into the analysis the fundamental principle that the actor should do what a reasonable prudent person should do, and the actor should know what a reasonable prudent person (or individual with specialized knowledge) should know. In discussing §319, Hoen utilized the terminology "dangerous propensities". The title of Section §319 is "Duty of those in charge of person having dangerous propensities." Yet, the substance of §319 refers to 'injurious' propensities. 'Dangerous' is not found anyway in §319, or its commentary or illustrations. 'Injuriously' means acting in a matter that causes injuries. 'Dangerous' means able or likely to cause harm. 'Dangerous' refers more to the actor, while 'injuriously' refers more to the action. In New York, precedent focuses more on the possible action. See, Purdy v. Public Adm 'r of County of Westchester, 72 NY2d 1, 8 (NY 1988) (Stating one type of special relationship is "a relationship between defendant and a third person (intermediary) whose actions [not being] expose plaintiff to harm.") As importantly, the newest version of §319 omits the terminology 'dangerous propensities' and 'injurious' propensities. Instead, the newest Restatement states liability could exist when "an actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks 110 posed by the other that arise within the scope of the relationship." See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §41 (20 12)(Emphasis Supplied.) Section §41's language 'risks posed by the other' is a lesser burden than 'dangerous propensities,' and is probably a lesser standard than 'injurious propensities.' 'Dangerous' implies that the actor must have either a reckless quality, or an intent to hurt, while 'risks posed' encompasses actions caused by negligence. In defining whether 'risks posed' are reasonable risks to guard against under the circumstances, the analysis should focus on "the foreseeable probability and magnitude of any harm." (Id. at cmt. ( c).) Notably, Hoen- nor any case Appellant is aware of- ever conducted an analysis pertaining to de facto' control,' functional control, or 'actual' control. Restatement Third of Torts takes no position whether a physician can, or should be deemed, to control a patient and "leaves to further [precedential] development the question." See, Restatement 3rd Torts: Liability for Physical and Negligence Liability, §41, cmt. (h) (2012). Yet, it is noted that "in some cases, care provided to a patient may create risks to others." (Id.) The Restatement Third of Torts noted that the list of relationships in §41- which does not include physician-patient- is nonexclusive. (Id. at cmt. (i).) III Notably, the Restatement Third of Torts states that a relationship that could give rise to control requires "some degree of control over the other person." (Id. at cmt. (c).) Complete control- or authority to detain- is quite different than 'some degree of control,' and New York's' actual control.' In the psychiatric context, a compelling policy reason not to apply the control doctrine exists- namely not wanting to transform hospitals into de facto prisons. Yet, in the situation in the case at bar, there is no compelling policy reason not to apply the 'control' doctrine. 18 Separate and apart from precedent pertaining to administration of medications, a great deal of out-of-state precedent peliains to the possible duty to warn that arises from the act of prescribing, with the majority of states finding for a duty. See, McKenzie v. Hawai'i Permanente Med. Group, 47 P3d 1209 (Haw 2002) (Prescribing creates a duty to warn); Burroughs v. Magee, 118 SW3d 323, 329 (Tenn 2003)(Same); Coombes v. Florio, 877 NE2d 567 (Mass 2007)(Same); 18 Cj, Annals of Emergency Medicine, March 2007, Vol 49, Issue 3, P 257-264, Michael J. Schull et. aI., The Effects to Low-Complexity Patients on Emergency Department Waiting Times, abstract available at http://www.annemergmed.com/aliicle/SO 196-0644%2806%2900884-5/abstract (Concluding low-complexity ED patients cause negligible increases in ED length of stay and time to first physician contact for other patients, and concluding that reducing the number of low-complexity ED patients is unlikely to reduce waiting times for other patients or lessen crowding.) 112 Gooden v. Tips, 651 SW2d 364 (Tex App 1983); Kaiser v. Suburban Transp. Sys, 65 Wn2d 461, 398 P2d 14 (Wash 1965); But See, Cheeks v. Dorsey, 846 So.2d 1169 (Fla Dist. Ct. App. 2003)(Prescribing creates no duty to warn). Some out-of-state precedent pertains to other duties, besides warnings, that might arise from 'negligent' prescribing. See, B.R. ex ref. Jeffs v. W, 2012 UT 11, 275 P3d 228,2012 WL621341 (Utah 20 12)(Unanimous Court)(Negligent prescribing could create third-party liability); Zavalas v. State, 124 Or. App 166, 861 P2d 1026, 1029 (Or. 1993); Compare, Webb v. Jarvis, 575 NE2d 992 (Ind. 1991 )(Negligent prescribing does not create third-party liability); McKenzie v. Hawai'i Permanente Med. Group, 47 P3d 1209 (Haw 2002) (Same); Burroughs v. Magee, 118 SW3d 323, 329 (Tenn 2003)(Same, though with two Dissenting Justices). For purposes of this case, the Court need not rule upon what would occur with 'negligent' prescribing, or a failure to warn from prescribing. This case is simpler, and 'administration' cases present many variables that favor a duty that do not exist in the prescription context, including administration is an affirmative act where the direct effects of the act and/or medications are more observable to Respondents; (2) Respondents control the administration, while in the prescription context Respondents are not present during administration, which could increase 113 the likelihood of frivolous lawsuits (i.e., patients could take inappropriate amounts of the medication, or drink alcohol while taking the medication- and if such things occur it could be an intervening factor to causation- yet there might not be any way to prove these things in some cases); (3) here stronger arguments that the Respondents were in the best position to prevent against the risk of harm, including the time period of the risk is much shorter; (4) in the prescription context, the duty would cover a longer period of time than in the administration context, thereby enlarging the orbit of duty. Cf Wilschinsky v. Medina, 108 NM 511,514-515 (N.M. 1989) (Distinguishing the administration context from the prescription context). While tort principles might be satisfied in the prescription context, as previously stated, tort principles are not considered in a vacuum. The Court could find tort principles apply, but find against the existence of a duty on policy grounds as the Court did in Strauss (as oppose to redefining the tort principle.) Yet, in the negligent prescription context, hospitals are generally not involved, and the policy interests against the existence of a duty are merely the financial interests of professionals and their insurers, which may 'simply not be in the same league' as regulating narcotics in a prescription drug abuse era and 114 protecting the physical welfare of citizens. Irrespective, the Court can leave this issue for another day. Point XI: Based on the totality of the circumstances a third-party duty should exist. This case presents with multiple factors that support the existence of a third-party duty, including the following: • Facts that satisfy third-party liability tort principles enunciated in Restatement Second of Torts §324A(a), §324A(b),§324A(c). • Respondents possessed 'actual' control and possessed sufficient 'ability and authority' to control. • Facts that satisfy the Tenuta/McNulty 'arise from treatment' rule and/or qualify as a launching of harm. • The Respondents were in the best position to prevent against the risk of harm, as patients seeking treatment at an Emergency Room have no forewarning about the potential medications to be administered; the patient's ability to self-protect is inhibited through no fault of the patient; the patient is cognitively impaired at the time of discharge; and the patient is cognitively impaired throughout the course of the 115 entire treatment (in contrast to most non-Emergency Department contexts). • The Respondents were in the best position to prevent against the risk of harm- from a societal perspective- because the Respondents have knowledge of the possible harm before it occurs, while the State's police forces have no notice of the danger, and the police departments' mechanisms for detecting drug impaired driving are flawed and limited. Compare, Braverman v. Bendiner & Schlesinger, Inc., 990 NYS2d 605,613 (2d Dept 20 14)(Finding family court personal's fiduciary-like status placed them in a better position than a laboratory to protect against the risk of harm of failing to warn a litigant about admissibility of drug testing results.) Additionally, the family court personal were in the best position to prevent against the risk of harm because the court in essence created the modified program- created the contract- and could have required that litigants agree to modified evidentiary rules for admission into the specialized program. • Foreseeability of the final harm existed, namely motor vehicle accidents causing harm to road travelers. 116 .. The tort pertains to an abrupt, cataclysmic event that Appellant had no chance to avoid. .. Detrimental reliance of the patient arising from the fiduciary relationship, causing the patient to commit a negligence tort, that led to involuntary physical harm to the patient and third-party victim from the same transaction. .. Viable contribution claims already existing- under current precedent- from Ms. Walsh to Respondents, lessening any economic impact of a duty. This variable alone significantly distinguishes this case from Tenuta, McNulty & Cohen, where the patients did not commit torts, and third-party actions could not occur. .. The legal duty Appellant proposes is an already existing professional duty and merely requires Respondents to do nothing more than what they are already obligated to do for the benefit of their patients and adds no new responsibilities or professional duties. .. The class size of third-party 'actual victims' is only one (l), which is the smallest extension of the privity doctrine that is possible. .. There is a low likelihood of frivolous lawsuits because of two factual predicate that must occur for a duty to exist, namely a patient must be 117 administered medications (which will be documented in the patient's chart), and a car accident must then ensue upon the patient's discharge. • Strong public policies counsel in favor of a duty, including deterring drug impaired driving, compensating victims of drug impaired driving, regulating dangerous pharmaceutical products, and enforcing physicians' fiduciary obligations. • The tort is easily preventable in the future. This case presents with an avalanche of factors that indicate that the risk that Respondents cast upon Appellant should come under the protection of tort law- arguably even more factors than existed in Tenuta, because the policy interests that support the existence of a duty in this case are superior. For example, in Tenuta, the policy issues, partially, pertained to the State's interest in preventing spreading of contagious diseases. The containment of contagious diseases is primarily restricted to the medical industry. Yet, the issue of drug impaired driving is a situation that transcends one specific context. A strong holding denouncing drug impaired driving will not only deter the tort with medical tortfeasors, in fact such a holding would reverberate all throughout New York. 118 Point XU: Appellant's amended complaint was not required to contain the exact magical words that Respondents 'possessed sufficient authority and ability to control Ms. Walsh's conduct.' In its decision, the Second Department dismissed the action because the proposed amended complaint "failed to allege" that "the defendants possessed sufficient authority and ability to control Walsh's conduct so as to give rise to a duty to protect Davis." In Paragraphs 13 & 15 of the amended complaint, Appellant alleged the following: That on March 4,2009, Lorraine A. Walsh sought the professional care of Defendants South Nassau Communities Hospital, Regina E. Hammock, DO, Christine DeLuca, PRA-C and Island Medical Physicians, P.C., their employees for certain medical complaints, and these Defendants, rendered medical care, diagnosis, treatment and services to her, including the administration of Toradol, Dilaudid and Ativan and then discharging Lorraine A. Walsh, in severe pain, a state of disorientation, under the influence of the aforementioned drugs without restriction and without providing a proper method for her to return home. That on the aforementioned date and within a short time after of [sic] her discharge, Lorraine A. Walsh drove her 2003 Ford automobile across the double yellow lines of West Merrick Road colliding head on with the vehicle being operated by Plaintiff Edwin Davis. 119 By reason of the foregoing, after Lorraine A. Walsh was dischargedfrom the hospital on March 4,2009, she was involved in a motor vehicle accident. (Emphasis Supplied.) "In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7), the sole criterion is whether from the complaint's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (NY 1978). The Second Department's finding that the proposed amended complaint was patently devoid of merit because Appellant failed to explicitly allege that Respondents had sufficient 'authority and ability' is contrary to this Court's rule of law that complaints need only plead 'factual allegations' and not 'magic' legal words. Indeed, the "criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Guggenheimer, at 275. See, East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 AD3d 122, 130 (2d Dept 2009)(Dillon J.)(Dissenting in part)(Noting Complaints "are subject to the 'notice pleading' requirements ofCPLR §3013, which are to be liberally construed. Notice pleading is satisfied so long as the pleading provides notice to an adversary of the transactions or occurrences giving rise to a claim.") 120 Appellant's proposed amended complaint alleged that Ms. Walsh sought treatment at the South Nassau Communities Hospital, and that Ms. Walsh was "discharged from the hospital" by Respondents in a state of disorientation. Such factual allegations are a legally sufficient factual predicate to state a cause of action that Respondents possessed sufficient ability and authority to 'control' Ms. Walsh. Correspondingly, "in assessing a motion under CPLR §3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v. Martinez, 84 NY2d 83, 88 (NY 1994). At the trial level, Appellant submitted the affirmation of an expert Emergency Department physician, which supplemented the Complaint's allegations. (R. at 276-285.) Point XIII: The within action should be consolidated with the two related actions. If a duty exists, then the within action and Appellant's lawsuit against Ms. Walsh, and Ms. Walsh's lawsuit against the Respondents should be consolidated. They all arise from the same set of facts. 121 CONCLUSION Since Justice Cardozo, this Court has continuously issued strong opinions reaffirming the State's interest in upholding the standards of fiduciaries, and in doing so championing the interests of all citizens who have no choice but to relinquish autonomy and rely on fiduciaries' competence. Such exalted precedent and values should not fall at the hands of the medical industry for the purpose of pardoning those who cause drug impaired driving. If Respondents and their insurers' status is more important than deterring drug impaired driving, then what type of message does this send to the rest of the State about drug impaired driving? F or the reasons stated above, the Order of the Second Department should be reversed; the Court find that Respondents did have a legal duty to Appellant; and the within action be consolidated with the two related actions. Date: Garden City, New York November 12,2014 122 Respectfully submitted, DELL & DEAN, PLLC Attorneys for P lain t?ffs-Appellants 1325 Franklin Avenue, Suite 100 Garden City, New York 11530 (516) 880-9700 By:~J(jl~/I_ Joseph G. Dell, Esq. By: l. \$. Christopher R. Dean, Esq. BY:~~r-____ ~== ______ _ 123