Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.BriefN.Y.October 15, 2015To Be Argued By: James W. Tuffin Time Requested: 30 Minutes APL-2014-00245 Nassau County Clerk's Index Nos. 1834/11,23966/09 and 8405/09 (!ourt of ~pptal~ STATE OF NEW YORK Index No. 1834/11 EDWIN DAVIS and DIANNA DAVIS, Plaintiffs-Appellants, against SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, D.O., CHRlSTINE DELUCA, RPA-C, and ISLAND MEDICAL PHYSICIANS, P.C., Defendants-Respondents. (Additional Caption On the Reverse) BRIEF FOR DEFENDANTS-RESPONDENTS REGINA E. HAMMOCK, D.O., CHRISTINE DELUCA, RPA-C, AND ISLA D MEDICAL PHYSICIANS, P.C. JAMES W. TUFFIN One CA Plaza, Suite 225 Islandia, New York 11749 516-359-6420 Of Counsel: James W. Tuffin Date Completed: January 22, 2015 Appellate Counsel to: SANTANGELO, BENVENUTO &SLATTERY 1800 Northern Boulevard Roslyn, New York 11576 516-775-2236 Attorneys for Defendants-Respondents Regina E. Hammock, D.o., Christine DeLuca, RPA-C and Island Medical Physicians, Pc. Index No. 23966/09 LORRAINE WALSH-RoMAN, PlaintifFRespondent, against REGINA E. HAMMOCK, M.D., ROBERT DEAN, M.D., CHRISTINE DELUCA, P.A., SOUTH NASSAU COMMUNITIES HOSPITAL, and ISLAND MEDICAL PHYSICIANS, P.C., Defendants-Respondents. Index No. 8405/09 EDWIN DAVIS, Plaintiff, against LORRAINE A. WALSH, Defendant. COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------J( EDWIN DAVIS and DIANNA DAVIS, Plaintiffs-Appellants, -against- SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E.HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, ISLAND MEDICAL PHYSICIANS, P.C., Defendants-Respondents, ---------------------------------------------------------------------J( APL-2014-00245 CORPORATE DISCLOSURE STATEMENT OF DEFENDANT - RESPONDENT ISLAND MEDICAL PHYSICIANS, P.C. Island Medical Physicians, P.C., is a domestic professional corporation. It has no corporate parents or subsidiaries. It has the following affiliates: Island Emergency Medical Services, P.C., Port Emergency Medical Services, P.C., Siena Emergency Medical Services, P.C., Pegasus Medicine Group Empire State, PLLC, and Pagasas Emergency Group RTA, LLC. Dated: January 22,2015 ~.fur;m~ Appellate Counsel One CAPlaza Suite 225 Islandia, New York 11749 (516) 359-6420 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x EDWIN DAVIS and DIANNA DAVIS, Plaintiffs-Appellants, -against- SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E.HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, ISLAND MEDICAL PHYSICIANS, P.C., Defendants-Respondents, ---------------------------------------------------------------------x STATUS OF RELATED LITIGATION APL-2014-00245 Walsh-Roman v. Hammock, et aI, Nassau County Index No. 23966- 2009, and Davis v. Walsh, Nassau County Index No.: 8405-2009, have been ordered for joint trial and are on the trial calendar of Supreme Court, Nassau County. Upon information and belief, there are no pending appeals. Dated: January 22,2015 ~wl~ .J7fues W. Tuffin Appellate Counsel One CAPlaza Suite 225 Islandia, New York 11749 (516) 359-6420 TABLE OF CONTENTS Table ofAuthorities iv Introduction 1 Question Presented 2 Statement ofFacts 3 A. Medical treatment 3 B. The accident 6 C. The litigation 7 Point I A Physician's Duty Is Properly Limited to Her Patient or, In Extraordinary Circumstances Not Presented Here, Immediate Family or Household Members 11 A. Courts are properly reluctant to create new duties and causes of action 13 B. The established law of this State limits the duty ofmedical professionals to their patients and, in special circumstances, members ofpatients, immediate families 14 C. The challenged conduct in the present case is medical treatment 17 i TABLE OF CONTENTS CCONT'D) Point II The Emergency Room Team Did not Undertake a Duty to the General Public by Control of the Patient 20 A. The supposed voluntary submission of the patient did not constitute control by the Respondents 21 B. A physician's fiduciary obligations do not confer control that would justify the imposition of tort liability to non-patients 25 C. Respondents did not take charge of a person having dangerous propensities 28 Point III Duty to the General Public Was Not Established By Creation ofa Hazard, Displacement ofDuty, or Detrimental Reliance 32 A. Allegations that the emergency room team created a hazardous condition or launched harm by negligence in patient care are insufficient to establish a breach of duty to the general public 33 B. Appellants did not rely on medical services provided by Respondents 35 C. There was no displacement ofduty in this case .37 ii TABLE OF CONTENTS (CONT'D) Point IV Creation of a New Cause of Action Will Not Advance Public Policy 41 Point V New York Should Avoid the Inconsistency and Confusion Found in Other States 47 Conclusion 57 Unreported Decision '" S1 iii TABLE OF AUTHORITIES New York Cases Aufrichtig v Lowell, 85 N.Y.2d 540 (1995) 26 Bazakos v. Lewis, 12 N.Y.3d 631, 634 (2009) 18 Bleiler v. Bodnar, 65 N.Y.2d 65, 72 (1985) 18 Bovsun v. Sanperi, 61 N.Y.2d 219 (1984) 42 Cartier v. Long Is. ColI. Hosp., 111 A.D.2d 894, 895 (2d Dept. 1985) 53 Chainani by Chainani v. Bd. ofEduc. of City of New York, 87 N.Y.2d 370 (1995) 22 Chase Scientific Research, Inc. v. NIA Group, Inc., 96 N.Y.2d 20, 29 (2001) 25-26 Church ex reI. Smith v. Callanan Indus., Inc., 99 N.Y.2d 104, 112 (2002) 32 Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639 (2000) 12, 36 Conboy v. Mogeloff, 172 A.D.2d 912 (3d Dept. 1991) 11 Cubito v. Kreisberg, 69 A.D.2d 738, 745-46 (2d Dept. 1979) affd, 51 N.Y.2d 900 (1980) 33 D'Amico v. Christie, 71 N.Y.2d 76, 89 (1987) 28 Davis v. Walsh, (Sup. Ct., Nassau Co., June 27, 2011, Index No.: 8405/2009, Woodard, J.) ... 6, 39 De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055 (1983) 35 iv TABLE OF AUTHORITIES New York Cases (Cont'd) Dunn v. State, 29 N.Y.2d 313 (1971) 19, 29 Eberle v. Hughes, 77 A.D.3d 1398, 1399 (4th Dept. 2010) .44 Eiseman v. State, 70 N.Y.2d 175 (1987) 14, 16,37 Ellis v. Peter, 211 A.D.2d 353 (2d Dept. 1995) 53 Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002) 32, 38 Fox v Marshall, 88 A.D.3d 131 (2d Dept. 2011) 30 Green Bus Lines v. Ocean Acc. & Guar. Corp., 287 N.Y. 309, 312 (1942) 24 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) 13, 14,20-21,22 Homere v. State, 48 A.D.2d 422 (3d Dept. 1975) 19 In re New York City Asbestos Litig., 5 N.Y.3d 486 (2005) 23 Januszko v. State, 93 Misc. 2d 1041 (Ct. Cl. 1976) affd, 61 A.D.2d 1077 (3d Dept. 1978) affd, 47 N.Y.2d 774 (1979) 29 Jones v. State, 267 A.D. 254 (3d Dept. 1943) 19, 29 Jones v. Weigand, 134 A.D. 644 (2d Dept. 1909) 22 Kulaga v. State, 31 N.Y.2d 756 (1972) 19 Lauer v City ofNew York, 95 N.Y.2d 95, 100 (2000) 13, 34 v TABLE OF AUTHORITIES New York Cases (Cont'd) Marchione v. State, 194 A.D.2d 851(3d Dept. 1993) 49 Matalavage v Sadler, 77 A.D.2d 39,43 (2d Dept. 1980) 57 McNulty v. City ofNew York~ 100 N.Y.2d 227 (2003) 12, 15, 16,33,36 Meinhard v Salmon, 249 N.Y. 458, 464 (1928) 27 Morfesis v. Sobol, 172 A.D.2d 897 (3d Dept. 1991) .46 Palka v. Servicemaster Mgt. Services Corp., 83 N.Y.2d 579 (1994) 13, 38, 40 Park v. Kovachevich, 116 A.D.3d 182, 192 (1st Dept. 2014) Iv. den., 23 N.Y.3d 906 (2014) 39 Pulka v. Edelman, 40 N.Y.2d 781, 786 (1976) 14 Purdy v. Pub. Adm'r of Westchester County, 72 N.Y.2d 1 (1988) 11, 16,29, 53 Purdy v. Pub. Adm'r of Westchester County, 127 A.D.2d 285 (2d Dept. 1987) 53 Rattray v State, 223 A.D.2d 356 (1st Dept. 1996) 30 Rebollal v. Payne, 145 A.D.2d 617 (2d Dept. 1988) 12 Rios v. Smith, 95 N.Y.2d 647 (2001) 23 Rivers v Murray, 29 A.D.3d 884 (2d Dept. 2006) 23 Riviello v. Waldron, . 47 N.Y.2d 297 (1979) 22 vi TABLE OF AUTHORITIES New York Cases (Cont'd) Schrempfv. State, 66 N.Y.2d 289 (1985) 29 Scott v. Uljanov, 74 N.Y.2d 673, (1989) 18 St. George v. State, 283 A.D. 245 (3d Dept. 1954) affd, 308 N.Y. 681 (1954) 29 Strauss v Belle Realty Co., 65 N.Y.2d 399 (1985) 40,41 Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606 (1997) 11, 12 14, 18,35,38 Tobin v Grossman, 24 N.Y.2d 609 (1969) 13 Trombetta v. Conkling, 82 N.Y.2d 549 (1993) 42-43 Weihs v. State, 267 A.D. 233 (3d Dept. 1943) 19, 29 Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784 (1996) 18 Williams v. State, 18 N.Y.3d 981 (2012) rearg denied, 19 N.Y.3d 956 (2012) 29 Winters v. New York City Health & Hospitals Corp., 223 A.D.2d 405 (1st Dept. 1996) 30 New York Statutes Business Corporation Law § § 1503, 1504 11 CPLR 214-a 33 CPLR 214-d 33 CPLR 3211(a)(7) 8 CPLR 3211(h) 33 Education Law § 6530 [17], [23] 26 Education Law § 6530 [3],[4],[5] 46 vii TABLE OF AUTHORITIES New York Statutes (Cont'd) Education Law § 6542 [1] 11, 17 Education Law § 6542 [2] 11, 17 Insurance Law § 5104(a) _ _ .43 Mental Hygiene Law §§ 9.01, 9.13(b) 31 Mental Hygiene Law Article 9 30 Public Health Law § 2805-j 46 Public Health Law § 2995-a 46 Vehicle and Traffic Law § 333 43 Regulations 45 CFR § 60.7 46 10 NYCRR § 405.4(e) 17 10 NYCRR § 405.9 28 Other State Cases B.R. ex reI. Jeffs v. W., 2012 UT 11,275 P.3d 228 (Utah 2012) 51 Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. Dist. Ct. App. 2003) 53 Coombes v. Florio, 450 Mass 182, 190, 877 N.E.2d 567 (2007) .48,49 Gooden v Tips, 651 S.W.2d 364 (Tex. App. 1983) 52 Joy v. E. Maine Med. Ctr., 529 A.2d 1364 (Me. 1987) 55 Kirk v. Michael Reese Hosp. and Med. Ctr., 17 Ill. 2d 507, 513 N.E.2d 387, (1987) 55-56 Lester ex reI. Mavrogenis v. Hall, 1998-NMSC-047, 126 N.M. 404, 970 P.2d 590, (N.M. 1998) 53 viii TABLE OF AUTHORITIES Other State Cases (Cont'd) McKenzie v Hawai"i Permanente Med. Group, Inc., 98 Hawai'i 296, 47 P.3d 1209, (2002) 50 Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) 52 Robinson v Health Midwest Dev. Group, 58 S.W.3d 519,521 (Mo 2001) .48 Robinson v. Health Midwest Dev. Group, WD 58290, 2001 WL 212776, at *1 (Mo Ct App Mar. 6,2001) as mod (May 1,2001) 48 Shortnacy v. N. Atlanta Internal Medicine, P.C., 252 Ga. App. 321, 556 S.E.2d 209, (Ga. Ct. App. 2001) 52 Taylor v. Smith, 892 So. 2d 887 (Ala 2004) 52 Webb v. Jarvis, 575 N.E.2d 992,997 (Ind. 1991) 51-52 Welke v. Kuzilla, 140 Mich. App. 658, 365 N.W.2d 205 (Mich. Ct. App 1985) 54 Welke v. Kuzilla, 144 Mich. App. 245, 375 N.W.2d 403,407 (Mich. Ct. App. 1985) 54 Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521 (Tenn. 1980) .47 Wilschinsky v Medina, 1989-NMSC-047,108 N.M. 511, 775 P.2d 713 (N.M. 1989) 54 Other State Statutes Mich. Comp Laws Ann § 600.1483 55 Restatement of Torts Restatement (Second) ofTorts § 319 .31 Restatment (Second) of Torts § 324A 36 ix TABLE OF AUTHORITIES Other Authorities Tina Wescott Cafaro, Slipping Through the Cracks: Why Can't We Stop Drugged Driving?, 32 WNew Eng L Rev 33, 44 (2010) .45 Cameron Hardesty, Friends and Family are Primary Sources ofAbused Prescription Drugs, White House Office ofNational Drug Control Policy Blog (April 25, 2012, 03:41 PM) http://www.whitehouse.govlblog/2012/ 04/25/friends-and-family-are-primary-sources-abused-prescription-drugs .45 Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct ofAnother, 43 Yale LJ 886, 902 (1934) 24 Dayna Bowen Matthew, Implementing American Health Care Reform: the Fiduciary Imperative, 59 BuffL Rev 715, 732 (2011) 26 Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in A Changing Health Care System, 21 Am. J.L. & Med. 241, 242 (1995) 27 J. Michael Walsh, ,A State-by-State Analysis ofLaws Dealing With Driving Under the Influence of Drugs, National Highway Traffic Safety Administration (December 2009) .45 x INTRODUCTION Defendants-Respondents Regina E. Hammock, D.O., Christine DeLuca, RPA-C, and Island Medical Physicians, P.C. ("IMP"), ask this Court to affirm the decision and order of the Appellate Division, Second Department, dated July 2, 2014. Respondents, an emergency room medical team, did not breach any duty to Appellant Edwin Davis in connection with the medical treatment they provided to their patient. It is documented that they instructed the patient to stay home from work, rest in bed, avoid exertion, and beware of weakness, fainting, and dizziness. Although the patient denied any recollection of the circumstances of the accident, Appellants assume that Respondents failed to advise the patient against driving home from the hospital. When all the circumstances are considered, and hyperbole is set aside, this case clearly illustrates why the present law of New York properly limits the orbit of physicians' duty. 1 QUESTION PRESENTED Did Respondents breach a duty to the general public in rendering professional medical services to their patient? The Appellate Division held that Respondents did not have any duty to Appellants. 2 STATEMENT OF FACTS A. Medical treatment. Ms. Walsh-Roman visited her gynecologist, Dr. Dean, with complaints of abdominal pain. Dr. Dean performed a trans-vaginal scan and detected the presence of an ovarian cyst. Dr. Dean gave Ms. Walsh-Roman a prescription for a further ultrasound study to evaluate for torsion (R. 233, 240, 242).1 Ms. Walsh-Roman then took the prescription to the emergency department of South Nassau Communities Hospital, but left because it looked too crowded (R. 233). Ms. Walsh-Roman returned to the hospital on the following morning. She was checked in by the triage nurse at 7:20 A.M. The triage nurse checked off"car" as the mode of arrival. The triage form does not identify the driver; the only other choices are "ambulance" or "wheelchair". Ms.Walsh-Roman reported that she was allergic to morphine (R. 240). 1 Refers to pages of the Record. 3 Ms. Walsh-roman told the triage staff that he had pain since the day before (R. 240), but at the time of examination stated she had pain "x [times] 3 days" (R. 233). She scored her pain as nine (9) on a scale often (10) (R. 233). Defendants-Respondents Regina Hammock, D.O., and Christine DeLuca, RPA-C, were on duty in the emergency department under the auspices of their employer, IMP. Dr. Hammock is a physician (R. 24 ~6; 33 , 3). Ms. DeLuca is a licensed physician assistant (R. 25 ~ 7; 67 ~4). The sonograms were performed and found two small cysts in the right ovary. There was no evidence of ovarian torsion, cholelithiasis or biliary ductal dilatation (R. 242-243). The medication record (R. 235) shows that Toradol was administered at 9:00 A.M., but only reduced Ms. Walsh-Roman's pain to 8110. One-half (.5) milligram each of Dilaudid and Ativan were given intravenously at 11 :05 A.M., and the pain improved to 2/10 (R. 235). The emergency room record contains the following narrative, and is signed by Ms. DeLuca with countersignature by Dr. Hammock: 4 Pt [patient] still clo [complains ot] pain 9/10 states morphine makes her itchy and "crazy" discussed pt [patient]c [with] Dr. Hammock and recommended .5 mg. Dilaudid and .5 mg Ativan. Pt [patient] discussed c [with] Dr. Hammock and advised pt [patient] can be discharged and sent home on Donnatal. Pt [patient] re-evaluated at discharge and Abd [abdomen] soft/non tender pt [patient] states ... 0110 pain. Pt [patient] agrees to flu [follow up] with PMD [private medical doctor] and gyn [gynecologist] in 2 days. Pt [patient] told to return to ED if symptoms return or worsen (R. 235.) The diagnosis was determined to be abdominal pain from an ovarian cyst (R. 235-236). At 11 :55 A.M., it was noted that Ms. Walsh-Roman was stable and to be discharged. (R. 235). Ms. DeLuca warned Ms. Walsh-Roman to watch for "extreme weakness, dizziness or fainting" (R. 237). Ms. DeLuca instructed Ms. Walsh-Roman to rest in bed, avoid heavy exertion, and to wait three days before returning to work (R. 237, 239). Ms. Walsh-Roman signed beneath an acknowledgment that she "read and understood the above, received a copy of the applicable instruction sheets, and will arrange for follow up care" (R. 236). Ms. DeLuca countersigned this document and noted the time as 12:05 P.M. (R. 236). 5 A nurse's note indicates Ms. Walsh-Roman was stable and left the facility at 12:30 P.M. (R. 241). By that time, her pain score increased to four (4) (R. 241). B. The accident. Ms. Walsh-Roman was involved in a motor vehicle accident at 12:49 P.M. (R. 225). Plaintiff-Appellant Edwin Davis was the driver of the other vehicle (R. 225). The police accident report contains no indication of any tickets, arrests, or violations (R. 225). The hospital record does not specifically mention instructions about driving or arrangements for getting home. Ms. Walsh-Roman denied any recollection ofthe events, but contended that the accident was caused by "a sudden and unexplained altered consciousness and/or epileptic seizure". The Supreme Court determined that "[i]t is unknown whether Walsh left with or without advisement about the effect of the medication administered to her during her stay at the hospital, if any, would have on her operation of a motor vehicle. Walsh testified she does not recall the accident at all". (Davis v. Walsh, [Sup. Ct., Nassau Co., June 27, 2011, Index No.: 8405/2009 6 Justice Woodard])2 It is beyond question that Ms. Walsh-Roman had prior personal experience with the effects ofnarcotic painkillers (R. 235). C. The litigation. Mr. Davis sued Ms. Walsh-Roman for personal injuries sustained by Mr. Davis in the accident (R. 286). Ms. Walsh-Roman contended that the accident was the result of "a temporary physical condition not of her own making" (R. 297). Ms. Walsh-Roman then sued Dr. Hammock, Ms. DeLuca and South Nassau Communities Hospital, alleging that the injuries she sustained in the accident were attributable to medical malpractice (R. 300-313). Appellants ultimately commenced the present action, alleging that Respondents rendered medical care "including . . . 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" (R. 26 ~13), and that Defendants' conduct was "not in accordance with accepted standards ofmedical care, treatment and services in the community insofar 2 Copy attached at the end of this brief pursuant to 22 NYCRR §500.1(h). 7 as the Defendants discharged Lorraine A. Walsh from the facility after she was administered the aforementioned medications and narcotics and without permitting or allowing the effect of these medications to abate before discharging her or instructing or arranging her a safe method of travel home" (R. 26-27 ~ 14). Dr. Hammock, Ms. DeLuca and IMP served answers (R 33-38,66-71,99-104) and moved to dismiss the complaint pursuant to CPLR 3211(a)(7) (R. 12-13), on the grounds that the duty undertaken by the health care professionals did not extend to Mr. Davis (R. 14-21). Plaintiffs cross moved for leave to amend their complaint to add additional claims for "general negligence" (R. 191-192,204). The proposed amended complaint would allege that the Defendants caused Ms. Walsh-Roman "to become medically intoxicated and cognitively impaired" (R. 458 ~30), that the "cognitive impairment" was the cause ofher automobile accident with Mr. Davis (R. 348 ~ 32), and that the "occurrence, and the results thereof, were caused by the joint, several and concurrent negligence ... in the ownership, operation, management, supervision, maintenance and control of the aforesaid premises" (R. 458-459 ~33). 8 Plaintiffs submitted an affirmation by a physician (R. 276-285). The physician disingenuously referred to Ms. DeLuca as a "staff member" (R. 278 ~4), ignoring her status as a licensed physician assistant, to suggest that the patient was not medically evaluated. Plaintiffs' expert conceded that "[t]he precise amount of time that Dilaudid will alter an individual's mental status will vary for each individual and depend on the dosage administered" (R. 283 ~12). The expert did not conclude that medication rendered the patient incapable ofunderstanding a warning against driving. There is no claim that the administration of the medications was, in itself, negligent. Allegations that Respondents were negligent in discharging the patient in a cognitively impaired state are conditioned on the assumption that she was released "to her vehicle" (R. 280 ~ 7). The Supreme Court dismissed the complaint. (R. 3-11). The court found that there was "no special relationship here that would warrant extending to non-patient plaintiffs the duty owed by defendants to their patient," (R. 9), and that in "the absence of a special relationship between plaintiffs and defendants and no direct duty owed by defendants to plaintiffs, there is no basis to amend the Verified 9 Complaint" (R 10). In view of the dismissal, consolidation was necessarily denied without further analysis (R. 11). The Appellate Division affirmed. The court held that that the medical malpractice complaint was properly dismissed because no physician-patient relationship existed between Respondents and Mr. Davis. The court also held that the proposed amended complaint was palpably insufficient and patently devoid of merit because the Respondents had no duty to the Appellant. 10 POINT I A PHYSICIAN'S DUTY IS PROPERLY LIMITED TO HER PATIENT OR, IN EXTRAORDINARY CIRCUMSTANCES NOT PRESENTED HERE, IMMEDIATE FAMILY OR HOUSEHOLD MEMBERS A doctor's duty3 to confonn to professional standards of practice does not extend beyond her patient except, in appropriate circumstances, to immediate family members. Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606 (1997). Appellants contend that, in the present case, the duty extended to members of the general public. In Purdy v. Pub. Adm'r ofWestchester County, 72N.Y.2d 1 (1988), this Court acknowledged that it has not specifically ruled on the boundaries of a physician's liability for alleged failure to advise a patient about the effect of medication on driving ability. The Appellate Divisions have ruled that duty does not extend beyond the patient. Conboy v. Mogeloff, 172 A.D.2d 912 (3d Dept. 1991) (children injured 3 A physician assistant is authorized by law to provide medical services under the supervision of a physician. Education Law § 6542[1]. That supervision need not require the physical presence of the physician. Education Law § 6542[2]. A professional corporation is authorized to provide professional services through individual licensees. Business Corporation Law § § 1503, 1504. Thus, Dr. Hammock, Ms. DeLuca, and IMP can be treated together in discussing the law pertaining to the duty of an emergency room physician. 11 while passengers in vehicle operated by medicated mother); Rebollal v. Payne, 145 A.D.2d 617 (2d Dept. 1988) (decedent struck by methadone patient). In cases decided after Purdy, this Court emphasized that a physician's duty can only be extended to non-patients in limited circumstances, and only to a "determinate and identified class". Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 614 (1997). See also: McNulty v. City of New York, 100 N.Y.2d 227 (2003) (no duty to friend ofpatient who casually inquired about friend's risk of infectious disease); Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639 (2000) (no duty to wife for negligent treatment ofhusband's infertility). Appellants argue that because the administration of medication increased the likelihood that Ms. Walsh-Roman would be involved in an automobile accident, Respondents took on a duty to the public at large to (1) evaluate the effect of the medication on her faculties, (2) warn her against driving, and (3) inquire into her arrangements for transportation to her home. Appellants argue that duty can be found on the basis of (1) an extension of established principles governing the duty to control the actions of a third person; or (2) extension of established principles governing the duty to avoid creation of a hazardous condition. 12 Justice will not be well served by creating a new cause of action to radically expand liability as urged by the Appellants. Examination of the inherent inconsistencies in the arguments advanced by Appellants, and the confusion manifest in decisions ofotherjurisdictions, demonstrates that the proposed extension of duty is both unfair and unworkable. A. Courts are properly reluctant to create new duties and causes of action. The determination of duty requires a balancing of factors " 'including the reasonable expectations ofparties and society generally, the proliferation of claims, the likelihood ofunlimited insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation ofnew channels of liability'''. Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001) (quoting Palka v. Servicemaster Mgt. Services Corp., 83 N.Y.2d 579,586 (1994) ). "Courts must be mindful of the precedential, and consequential, future effects of their rulings, and 'limit the legal consequences of wrongs to a controllable degree' " . Lauer v City ofNew York, 95 N.Y.2d 95, 100 (2000) (quoting Tobin v Grossman, 24 N.Y.2d 609,619 (1969)). "While a court might impose a legal duty where none existed before . . . such an imposition must be exercised with extreme 13 care, for legal duty imposes legal liability". Pulka v. Edelman, 40 N.Y.2d 781, 786 (1976). Foreseeability alone cannot establish the existence of duty, although it may determine the scope of a duty once that duty is established. Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001); Eiseman v. State, 70 N.Y.2d 175, 187 (1987). B. The established law of this state limits the duty of medical professionals to their patients and, in special circumstances, members of patients' immediate families. In Tenuto v Lederle Labs., Div. ofAm. Cyanamid Co., 90 N.Y.2d 606 (1997), the father of a child who received oral polio vaccine claimed that the physician who administered the vaccine failed to instruct the adult who accompanied the child on the danger posed to unvaccinated adults in the household. In holding that Tenuto presented an appropriate case to extend the duty of the physician to a person who was not the actual patient, this Court emphasized that the extension of liability was properly limited, within a determinate and identified class-immediate family members-whose relationships to the person acted upon have traditionally been recognized as a means of 14 extending and yet limiting the scope ofliability for injuries caused by a party's negligent acts or omissions. Id., 90 N.Y.2d at 614. This Court further observed that the pediatrician was actually engaged by the parents to provide services to the child, that the services necessarily included advising the parents, and that the physician's "comprehensive services necessarily brought into play the protection of the health of plaintiffs, who relied upon his professional expertise in providing advice and other forms of medical services". Id., at 614. Only the parents could receive the warning, so it was reasonable to find that the pediatrician had a direct duty to provide it to them. In McNulty v. City of New York, 100 N.Y.2d 227 (2003), McNulty was a friend of a hospitalized meningitis patient. McNulty alleged that, in the course of visiting the patient at the emergency room and hospital, McNulty casually asked some of the patient's doctors whether McNulty should seek treatment due to her earlier close contact with the patient. This Court held that these casual inquiries were insufficient to establish a physician-patient relationship, and that since it was not even alleged that McNulty's injuries arose from the treatment ofa patient, there was no possible breach ofduty. 15 Appellants argue that McNulty left the way open for establishing duty in the present case. This Court expressed profound reluctance to expand a physician's duty to non-patients: "a critical concern underlying this reluctance is the danger that a recognition ofa duty would render doctors liable to a prohibitive number ofpossible plaintiffs." Id., 100 N.Y.2d 227,232 (2003). In Purdy v. Pub. Adm'r of Westchester County, 72 N.Y.2d 1 (1988), a patient's underlying medical condition precipitated a car crash, causing injuries to a stranger. The patient voluntarily resided in a health related facility where she was free to come and go as she pleased. The facility physician's governing order placed no restrictions on the patient. Id. at 9. Thus, neither the facility nor the physician had sufficient control over the patient to give rise to a duty toward members of the general public. As to an alleged duty to warn the patient against driving, this Court noted that "the physician did not 'undertake a duty to the community at large. '" Id., at 9 (quoting Eiseman v State, 70 N.Y.2d 175, 188 (1987)). In Purdy, this Court recognized conflicting opinions from other jurisdictions on the existence ofa duty in favor ofunidentified members ofgeneral public to warn the patient of the adverse effects of prescribed medication on the safe operation of 16 an automobile. Id., at 10. This Court did not reach that specific question because the situation was not presented. C. The challenged conduct in the present case is medical treatment. This appeal anses from a medical evaluation performed by a licensed physician assistant, who found that the patient was stable and ready for discharge (R. 235). Plaintiffs expert attempted to portray this as an administrative error by referring to the physician assistant as a "staff member" (R. 278 ~ 4), and then completing the legerdemain by concluding that "a doctor did not evaluate Ms. Walsh at all at her discharge" (R. 280 ~ 7). A physician assistant is authorized by law to provide medical services under the supervision of a physician. Education Law § 6542[1]. That supervision need not require the physical presence of the physician. Education Law § 6542[2]. Hospitals are authorized by regulation to employ physician assistants. 10 NYCRR § 405.4(e). Appellants assert that that the physician assistant failed to ascertain that the patient was impaired by medication and failed to accordingly warn her against driving or inquire into arrangements for her transportation. The challenged conduct is thus a "prototypical act of medical malpractice." Bazakos v. Lewis, 12 N.Y.3d 17 631, 634 (2009). Bazakos involved an independent medical examination and the examinee was viewed as limited purpose patient. The challenged conduct in the present case at arises from the exercise ofprofessional judgment in the treatment of a specific patient. Whether the claim should be characterized as "medical malpractice" or "ordinary negligence" turns on the nature of the duty that is breached, not on the identity of the claimant. This Court's decision in Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606 (1997) is not to the contrary. In rejecting the contention that the claim in that case was solely statutory, this Court found that "[bloth 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 and malpractice. Id., at 611-612 (emphasis supplied). "Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.' " Scott v. Uljanov, 74 N.Y.2d 673,674- 675 (1989) (quoting Bleiler v. Bodnar. 65 N.Y.2d 65, 72 (1985)). An overarching consideration is whether the challenged conduct is "linked to the medical treatment of a particular patient". Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 786 (1996). 18 In the cases cited by Appellants to support their contention that the legislature intended to exclude claims by non-patients from the application of statutes pertaining to medical malpractice, the challenged conduct was not medical treatment but administrative negligence in failing to keep individuals, known to be dangerous, in custody. Four involved escapes: Kulaga v. State, 31 N.Y.2d 756 (1972) (convicted murderer escaped); Dunn v. State, 29 N.Y.2d 313 (1971) (escape from maximum security ward); Weihs v. State, 267 A.D. 233 (3d Dept. 1943) (escape from state hospital); Jones v. State, 267 A.D. 254 (3d Dept. 1943) (escape from state hospital). In Homere v. State, 48 A.D.2d 422 (3d Dept. 1975), a state facility failed to obtain a current medical evaluation before releasing a patient who had become violent, required a straight jacket, and developed seizures. The Appellate Division imposed liability upon the State "not for an erroneous medical judgment, but rather for its failure to make anything other than a purely administrative decision to release Samuels following the incidents of violence." Id., at 424. 19 POINT II THE El\.1ERGENCY ROOM TEAM DID NOT UNDERDTAKE A DUTY TO THE GENERAL PUBLIC BY CONTROL OF THE PATIENT A duty to control the conduct ofother persons exists in limited circumstances: [w]e have been cautious, however, in extending liability to defendants for their failure to control the conduct ofothers. "A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control". This judicial resistance to the expansion of duty grows out ofpractical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another. A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant's actual control ofthe third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others. Examples ofthese relationships include master and servant, parent and child, and common carriers and their passengers. The key in each is that the defendant's relationship with either the tortfeasor or the plaintiffplaces the defendant in the best position to protect against the risk of harm. In addition, the specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. 20 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222,232-33 (2001) (citations omitted). A. The supposed voluntary submission of the patient did not constitute control by the Respondents. Defendants did not have sufficient control over the patient to make them liable to third persons injured by her actions. She was free to come and go as she pleased from the hospital, and she exercised that freedom on the night before the accident (R. 233). If, on the day in question, the patient left the hospital accompanied by a friend, relative or taxi driver, there was nothing to prevent her from saying "give me the keys - I'm fme" or "take me to my car." Control cannot be predicated on the patient's voluntary compliance. Appellants concede that there is no precedent from this Court establishing that a patient's willingness to voluntarily comply with medical advice is sufficient control to create a duty to the general public (Appellants' Brief at 22). With or without a warning, and with or without arrangement for alternative transportation, Respondents had no ability to prevent the patient from driving once she left the hospital. The assertion that the patient would have heeded the warning ifgiven is, in fact, immaterial to the existence of actual control. 21 Appellants' contention that control can premised on the patient's willingness to accept her doctor's advice is unworkable because the existence ofthat willingness is clearly beyond the doctor's control. Consideration of the classic examples - "master and servant, parent and child, and common carriers and their passengers" - identified in Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001), illustrates how different they are from the relationship of a physician to a patient. The relationship of master and servant is defmed by the master's authority to direct the servant's work. Chainani by Chainani v. Bd. ofEduc. ofCity ofNew York, 87 N.Y.2d 370 (1995). Liability does not extend beyond the ambit of employment, which is the obvious boundary of the employer's authority to direct the employee. Riviello v. Waldron, 47 N.Y.2d 297 (1979). The employee's compliance with the employer's directives is largely irrelevant. Instead, the test has come to be " 'whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions' ". Riviello, at 302 (1979) (quoting Jones v. Weigand, 134 A.D. 644,645 (2d Dept. 1909)). This became the rule because social policy would not limit the ability of the injured person to recover from the employer for torts 22 committed by the employee, while doing the employer's work, to those instances where the employee followed the employer's explicit instructions. Id. In re New York City Asbestos Litig., 5 N.Y.3d 486 (2005)4 dealt with asbestos exposure to the spouse who laundered a worker's clothes, despite the fact that the employer provided laundry service to the employees. They alleged that the employer was negligent in failing to compel the worker to wear clean clothes home from work. This Court found the employer had no duty to the spouse since the employer was, "in fact, entirely dependent upon [the worker's] willingness to comply." Id., at 495. Parents undoubtedly have some authority over their minor children, and can be liable to injured persons for negligently entrusting a child with a dangerous instruments. Rios v. Smith, 95 N.Y.2d 647 (2001). Parents may also be liable for" 'failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child's propensity toward such conduct' ". Rivers v Murray, 29 A.D.3d 884, 884 (2d Dept. 2006). The child's willingness to follow the parents' instructions is not an issue. 4 Cited by Appellant (at 22,67) as Holdampfv. A.C.&S, Inc. 23 Passengers specifically rely on common carriers to provide them with safe transportation, and "[i]t is settled that a common carrier has a legal duty, after due notice, to protect its passengers from the assaults of fellow passengers". Green Bus Lines v. Ocean Ace. & Guar. Corp., 287 N.Y. 309,312 (1942). This arises from the passenger's specific reliance on the common carrier for protection as well as the carrier's authority to eject lawbreakers from the conveyance: "[c]orresponding to the duty to protect passengers against wrongdoers and co-extensive with it is the ancillary privilege on the part of the carrier to use force against the persons creating the disturbance or the risk ofharm". Fowler V. Harper & Posey M. Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886, 902 (1934). Appellants ground their argument on the assertion that the patient "would have done anything they [Respondents] told her to do" (Appellants' Brief at 23). Proving or disproving this would involve the courts in an unseemly, unwieldy, and probably futile exploration of a patient's propensity for following medical advice. Examination of a lifetime's medical records, and the patient's response to advice or prescriptions might be required. Psychologists would be enlisted to provide insight into the patient's attitude toward doctors and the likelihood of compliance. This is not a realistic or objective test. 24 Appellants' argument concerning the patient's alleged detrimental reliance (Appellants' Point V) is simply a different way of expressing their contention that the patient voluntarily submitted to Respondents' control. While Appellants assert that the Respondents failed to warn the patient against driving or to arrange transportation, there is no indication that Respondents affirmatively told the patient that she could, or should, drive. The evidence submitted by Appellants, which clearly documents that the patient was told to stay home from work, rest in bed, avoid exertion, and beware of weakness, dizziness and fainting (R. 237-239), strongly suggests the contrary. B. A physician's fiduciary obligations do not confer control that would justify the imposition of tort liability to non-patients. It is beyond question that physicians stand in a very different relationship to their patients than merchants to their customers. This is why the practice ofmedicine constitutes a learned profession and not a mere industry: [t]he term "professional" is also commonly understood to refer to the learned professions, exemplified by law and medicine . . . The qualities shared by such groups guide 25 us in defining the tenn "professional." In particular, those qualities include extensive fonnal learning and training, licensure and regulation indicating a qualification to practice, a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards. Chase Scientific Research, Inc. v. NIA Group, Inc., 96 N.Y.2d 20,29 (2001). Physicians have fiduciary obligations to their patients that extend beyond the duty to adhere to professional standards ofcare in rendering treatment. These include refraining from exploiting the patient for fmancial gain, preserving confidentiality, and to refrain from making false statements. Aufrichtig v Lowell, 85 N.Y.2d 540 (1995); Education Law § 6530 [17], [23]. One commentator noted, "[i]t is important to distinguish the fiduciary obligation recognized in law from the duty imposed on providers to act non-negligently". Dayna Bowen Matthew, Implementing American Health Care Refonn: The Fiduciary Imperative, 59 BuffL Rev 715, 732 (2011). The physician's status as a fiduciary in relation to her patient does not indicate the kind of control that supports liability to persons who are strangers to the physician-patient relationship. The authorities cited by Appellants generally discuss the heightened obligation of the fiduciary to the beneficiary. Growing concern is 26 expressed over the intrusion ofoutside parties into the physician-patient relationship: "[g]iven the formidable costs of medical care and the increasing dependence of doctors on organizations that employ and pay for their services, physician loyalty is weakened for patients and strengthened for other parties". Marc A. Rodwin, Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in A Changing Health Care System, 21 Am. J.L. & Med. 241, 242 (1995). Potential liability to strangers will intrude on the physician's loyalty to her patient. The patient's well-being should be the physician's utmost concern. Imposing liability in this case will no doubt have a chilling effect on physicians' readiness to provide appropriate pain relief for their patients. Maintaining necessary limits on the number ofpeople to whom a physician must answer for the exercise of professional judgment in treating a patient does not, as Appellants suggest, dilute the doctor's responsibility. To the contrary, it reinforces the fiduciary ethic of "undivided loyalty". Meinhard v Salmon, 249 N.Y. 458,464 (1928). 27 Ms. Walsh-Roman received services only in the emergency department and was never admitted as an in-patient (R. 233-250). Appellants' citation to 10 NYCRR § 405.95 is inapplicable. C. Respondents did not take charge of a person having dangerous propensities. Appellants' reliance on Restatement (Second) of Torts §319 is misplaced. This section applies in a relationship "closely akin to custody". D'Amico v. Christie, 71 N.Y.2d 76, 89 (1987). The emergency department of the hospital did not hold the patient in custodial care, and had no ability to direct her activities once she left. The patient was certainly not told that she was fully recovered, as in illustration 1 to the Restatement (Second) of Torts §319. She was undeniably instructed to rest in bed and beware of dizziness and fainting (R. 237). While the documentation does not specifically mention driving restrictions, there is no evidence or allegation that the Respondents took the patient to the parking lot and told her to drive her car. 5 Cited by Appellants, at 36, as "NYCRR 405.9(f)(7)". 28 The reference to "medical reason" in Purdy v. Pub. Adm'r of Westchester County, 72 N.Y.2d 1, 9 (1988) is best understood as illustrating the distinction between the mental-health escape cases, where exercise of medical judgment is not an issue, and cases where it is alleged that a patient was not properly diagnosed. Compare Schrempf v. State, 66 N.Y.2d 289 (1985) (alleged failure to admit or otherwise intervene with voluntary outpatient was an exercise of professional judgment for which the State could not be responsible to spouse of murder victim) and Januszko v. State, 93 Misc. 2d 1041 (Ct. Cl. 1976) affd, 61 A.D.2d 1077 (3d Dept. 1978) affd, 47 N.Y.2d 774 (1979) (State not liable for murder committed by released patient where psychiatrists did not find him to be dangerous); and St. George v. State, 283 A.D. 245 (3d Dept. 1954) affd, 308 N.Y. 681 (1954) ( State could not be liable for murder resulting from misdiagnosis which lead to the release of a psychiatric patient); with Dunn v. State, 29 N.Y.2d 313 (1971) (escape from maximum security ward); and Weihs v. State, 267 A.D. 233 (3d Dept. 1943) (escape from state hospital); and Jones v. State, 267 A.D. 254 (3d Dept. 1943) (escape from state hospital). In Williams v. State, 18 N.Y.3d 981 (2012) rearg denied, 19 N.Y.3d 956 (2012), it was alleged that the departure of a voluntary patient should have been classified as an escape, as opposed to an elopement. Whether or not any duty was 29 breached was irrelevant because the lapse of more than two years until the assault in question eliminated any possible proximate cause. Appellants' continued discussion of the mental health escape cases in their argument concerning intended beneficiaries (Appellants' Point VII) illustrates the proper limits on the scope of a physician's duty. In Fox v Marshall, 88 A.D.3d 131 (2d Dept. 2011), the record was not sufficiently developed for a detennination as to what level of control the facility exercised over the patient, so the claim was permitted to proceed. Id., at 137-138. In Rattray v State, 223 A.D.2d 356 (1st Dept. 1996), the issue was not the exercise of medical judgment in determining the patient's status, but negligence in leaving the patient with unsupervised access to an open window. In Winters v. New York City Health & Hospitals Corp., 223 A.D.2d 405 (1st Dept. 1996), a psychiatric patient was released without investigation of his auditory hallucinations, and the Appellate Division held that there were issues of fact to be resolved. Given Appellant's reliance on the mental health cases, it is highly relevant to note that the control that mental health facilities can exercise over patients is granted by Mental Hygiene Law Article 9. Even those patients who are admitted voluntarily 30 can be retained involuntarily, if, by reason ofmental illness, they pose a substantial threat ofharm to themselves or to others. Mental Hygiene Law §§ 9.01,9.13(b). There is no corresponding statute applicable to patients treated for abdominal pain. 31 POINT III DUTY TO THE GENERAL PUBLIC WAS NOT ESTABLISHED BY CREATION OF A HAZARD, DISPLACEMENT OF DUTY, OR DETREMENTAL RELIANCE Appellants analogize the practice ofmedicine to road construction or parking lot maintenance, and invoke the body of law governing the duty to strangers when hazardous conditions are created in the course of providing services under an agreement. In considering the existence of duty, the same criteria are applied whether the challenged conduct is described as creating or exacerbating a hazardous condition or "launching a force or instrument of harm". Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 143 (2002). There are three exceptions to the general rule that a promisor is not liable to persons who are strangers to the contract: (1) where the promisor unreasonably creates or increases a risk ofharm to others; (2) where the injured party is injured as a result of reasonable reliance on the defendant's performance; and (3) " 'where the contracting party has entirely displaced the other party's duty to maintain the premises safely'''. Church ex reI. Smith v. Callanan Indus., Inc., 99 N.Y.2d 104, 112 (2002). 32 Appellants' argument, that physicians should be similarly situated to persons in other occupations or professions, misses the point that the practice ofmedicine is inherently different from other endeavors, as has been recognized by the legislature and the courts: [i]fa departure from the general rule governing the accrual ofa cause ofaction for tort liability based on negligence is to be made on behalf of an architect sued by a person outside a professional relation with the architect, we think that it should be accomplished by the Legislature,just as the Legislature has acted on behalf of the medical profession. Cubito v. Kreisberg, 69 A.D.2d 738, 745-46 (2d Dept. 1979) affd, 51 N.Y.2d 900 (1980) (emphasis supplied) (citing CPLR 214-a). Since Cubito was decided, the legislature has implemented a number of measures governing claims for architectural malpractice that are very different from those applicable to medical malpractice claims. CPLR 214-d, CPLR 3211(h). A. Allegations that the emergency room team created a hazardous condition or launched harm by negligence in patient care are insufficient to establish a breach of duty to the general public. In McNulty, the plaintiffdid not contend that her injuries arose from treatment of a patient (See Point I, Sub-Point B, above). Appellants argue from this for 33 expansion of duty to any non-patient claiming injury arising from patient care, with a possible threshold requirement that the physician must have substantially increased a risk of harm (Appellants' Brief, 52-55). This would clearly do violence to the principle that in establishing the scope of duty, courts must limit consequences to a controllable degree. Lauer v. City ofNew York, 95 N.Y.2d 95, 100 (2000). Appellants suggest that reversal in this case is required because the Appellate Divisions have taken too narrow a view of duty where there is transmission of an infectious disease (Appellants' Brief 56-57, 62-63). Adopting the rule urged by Appellants would lead to untenable results. If a patient contracted a virulent infectious disease, such as Ebola, as a result ofhospital negligence, and was released into the general population without warning, it would be impossible to limit consequences to a controllable degree. Appellants offer an alternative, which takes an unrealistically narrow view of the problem, by arguing that number of persons involved in any particular automobile accident are usually few. There can be accidents involving multiple vehicles, trucks, or busses carrying passengers, which would increase the number of claims. More importantly, when the doctor reports for duty at the emergency room, 34 she must consider that every patient on that shift represents potential liability to an unknown number ofunknown people. This is a burden that cannot be imposed: [a] line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting, especially when symmetry and sympathy would so seem to be best served, to impose new duties, and, concomitantly, liabilities, regardless of the economic and social burden. De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055 (1983). B. Appellants did not rely on medica] services provided by respondents. The second exception - reliance by the injured party - is inapplicable in the present case, since the injured party was a stranger to both the doctor and the patient. This factor was important in Tenuto, because the patient's father was a household member who the doctor knew or should have known would suffer harm by his reliance. Tenuto v. Lederle Labs., Div. ofAm. Cyanamid Co., 90 N.Y.2d 606, 613 (1997). 35 Tenuto is best understood as an extension ofthe existing duty ofthe physician to parents of the infant patient under the specific circumstances of that case. Instructions for handling of the baby so to avoid polio infection of unvaccinated adults was required. It was impossible to deliver the instructions to the baby; they had to be given to the parents. Thus the "comprehensive services" included delivering the instructions to the parents, and a duty was owed directly to them. As this Court later explained, "the parents had hired the doctor and relied exclusively on his medical advice". McNultyv. City ofNew York, 100 N.Y.2d 227,234 (2003). Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639 (2000), involved the wife of a patient whose infertility treatment failed. This Court emphasized the specific purpose of the treatment and reliance of the injured person as a critical factors in establishing duty, quoting from the Restatement (Second) of Torts § 324A: "[0]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection ofa thirdperson ... is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care ... if ... "(c) the harm is suffered because of reliance of the other or the third person upon the undertaking" (emphasis supplied). 36 rd., at 643. Ms. Walsh-Roman came to the hospital for a sonogram and treatment of her abdominal pain, not for an evaluation of her driving ability. Eiseman v. State, 70 N.Y.2d 175 (1987), involved an administrative report and not treatment of a patient, but this Court took the opportunity to reiterate the need to place reasonable limits on the number of people to whom a physician may be liable: the situation before us poses a similar underlying concern: that the physician reporting the results of a physical examination of a patient, for the benefit ofhis patient, not be held to limitless liability to an indeterminate class of persons conceivably injured by any negligence in that act. In completing this particular report, the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient. The physician did not, however, undertake a duty to the community at large. rd., at 188. C. There was no displacement of duty in this case. The exception for displacement of duty, which can occur when a contractor undertakes to provide comprehensive maintenance services, does not apply to this 37 case. Ifa contractor undertakes the comprehensive and exclusive performance ofall maintenance functions, then the people who occupy the building can hold the contractor responsible for safety deficiencies to the same extent that they could hold the owner responsible. Palka v. Servicemaster Mgt. Services Corp., 83 N.Y.2d 579 (1994). The exception does not apply if the contractor is hired to perform discrete services at the direction of the owner. Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). The patient did not hire the emergency room team operate her vehicle. This Court's mention in Tenuto that communication with the child's parents was encompassed within the "comprehensive services" provided for the infant, could not have meant that a person is like an office building. Id., at 614. The contention here that by giving the patient painkillers, the doctor obliterated her personhood and revoked all personal autonomy, is a gross exaggeration. Appellants' expert emphasized the assumed failure to advise the patient against driving (R. 284). Nowhere in his affirmation did he conclude that the patient was incapable of understanding advice (R. 276-285). From the evidence that Appellants chose to submit in support of their cross motion, it is entirely possible that Respondents told the patient not to drive, but that 38 she decided to do so anyway. The physician assistant met with the patient an hour after giving the medicine, evaluated her, and found her stable and ready for discharge (R. 235). The documented instructions to the patient directed bed rest and warned of fainting and dizziness (R. 237). The patient was able to sign for the instructions (R. 236). As the patient left the hospital twenty-five (25) minutes later, a nurse confirmed that she was stable, and that the pain score increased to 4. This was surely some indication that the effects of the medication were subsiding. These aspects of the record were not mentioned in the affirmation ofAppellant's expert (R. 276-285). Appellants argue that because the accident happened soon after the patient left the emergency room, the patient must have been functionally unconscious when she left the premises. Reasoning back from an injury to fmd negligence is not proof. Park v. Kovachevich, 116 A.D.3d 182, 192 (1st Dept. 2014) Iv to appeal denied, 23 N.Y.3d 906 (2014). In the companion action, Ms. Walsh-Roman claims that the accident resulted from a sudden event, "medication induced epileptic seizure". Davis v. Walsh, (Sup. Ct., Nassau Co., June 27,2011, Index No.: 8405/2009, Justice Woodard).6 6 Copy attached at end of briefpursuant to 22 NYCRR § 500.l(h). 39 None of the cases cited by Appellants concerning the duty of a facility to protect patients confined to its care (Appellants' Brief at 70) suggest that the duty extends to the general public. Appellants are incorrect in asserting, in Point VII of their brief, that the purpose or scope ofthe undertaking ("intended beneficiary") need not be considered. "Considerations of privity are not entirely irrelevant in implementing policy". Strauss v Belle Realty Co., 65 N.Y.2d 399,403 (1985). In Palka v. Servicemaster Mgt. Services Corp., 83 N.Y.2d 579 (1994), "the very'end and aim' of the service contract was that Servicemaster was to become the sole privatized provider for a safe and clean hospital premises". Id., at 589 (citation omitted). Thus, an employee injured by a falling fan, who was entitled to assume that someone was responsible for keeping the premises reasonably safe, could look to the contractor who specifically undertook that task. While no physician wants her patient, or anyone else, to be involved in an accident, it cannot be said that the very end and aim ofmedical treatment is to provide safe roadways for the general public. 40 POINT IV CREATION OF A NEW CAUSE OF ACTION WILL NOT ADVANCE PUBLIC POLICY The public policy arguments put forward by Appellants best illustrate why this Court should refrain from establishing a new cause of action in this State. Courts must carefully consider the unknown and unintended consequences a creating new claims (see Point I, Sub-Point A above). Limiting recovery to the patient "can hardly be said to confer immunity from negligence" on the Respondents. Strauss v. Belle Realty Co., 65 N.Y.2d 399, 405 (1985). The patient sued the Respondents (R. 300), who have never denied their obligation to treat her in accordance with the applicable standard of care. Appellants argue that the creation ofthis new claim is an incremental step that would impose little burden on the medical profession, while simultaneously contending that it absolutely essential for the cure of a plethora of social ills, and 41 arguing that an affinnance will abolish the law of torts and rescind the law of contracts7. This Court has finnly rejected the notion that duty should be detennined ad hoc in response to the injuries presented in a particular case. In the context ofzone- of-danger claims for emotional hann, duty is limited to immediate family members. Bovsun v. Sanperi, 61 N.Y.2d 219 (1984). When invited to extend the duty to a niece, this Court explained why line drawing is necessary: [W]e have been precise and prudent in resolving tort duties, because the significant expansion of a duty "must be exercised with extreme care, for legal duty imposes legal liability" ... It remains part of this Court's important common-law tradition and responsibility to define the orbits of duty. Sound policy and strong precedents justify our confinement and circumscription ofthe zone ofdanger rule to only the immediate family as surveyed in Bovsun . .. Otherwise, the narrow avenue will ironically become a broad concourse, impeding reasonable or practicable limitations. . . . [T]he California Supreme Court suggested guidelines for detennining the degree to which a defendant owes a duty to a plaintiff bystander. .. The reviewing court would detennine whether a particular plaintiff bystander's emotional injury was foreseeable on a case-by-case basis, after balancing certain factors ... We have twice declined to adopt the Dillon approach because we were troubled by the potential sweeping liability and the unwarranted 7 Appellants' Brief at 85. 42 complication imposed on the judicial role, which the adoption of indefinite and open-ended analysis would entail. Trombetta v. Conkling, 82 N.Y.2d 549, 553 (1993) (citations omitted). In considering whether recognition of a new cause of action would create unmanageable liability, courts should consider not only the number of persons that may be involved in a particular incident, but also the potential for proliferation of individual claims. The legislature determined that insurance limits of $25,000.00 for personal injury and $50,000.00 for wrongful death are sufficient to operate a motor vehicle in New York. Vehicle and Traffic Law § 333. The pressure that may be asserted on patients to implicate their doctors in motor vehicle accident cases is obvious. Since the physician's liability will not arise from the use or operation of an automobile, the innumerable claimants who fail to satisfy the serious injury threshold may well pursue claims against the driver's physician. Insurance Law § 51 04(a). 43 Appellants suggest that claims on this new cause of action will be subject to expedient resolution based on medical records (Appellants' Brief, p. 76, n.1 0). This is not so, since patients can force a trial simply by alleging that the record is incorrect or incomplete. E.g.: Eberle v. Hughes, 77 A.D.3d 1398, 1399 (4th Dept. 2010) (patient testified that pharmacist suggested she could disregard written warning). Appellants argue that creation of this new cause of action is required to: (1) combat drug impaired driving (Appellants' Brief 95-96); (2) enhance regulation of dangerous pharmaceuticals (Appellants' Brief 118) ;(3) stem an alleged epidemic of patient injuries (Appellant Brief 94-95); and, (4) overcome deficiencies in state regulation of the medical profession (Appellants' Brief98-101). Drugged driving and, more generally, prescription drug abuse, are issues of great public importance and debate. Nevertheless, one-time administration of medicine in the emergency room is not generally cited as a statistically significant component of these problems. Appellants' contention that the cause of action they seek to create can be narrowly defmed to fit a specific fact pattern - physician administration of medicine, accident within a short time of treatment, and a single 44 injured party - is inconsistent with their assertion that reversal is necessary to address much wider social ills. The issues presented are complex and require a delicate balancing of competing interests. See, e.g., Tina Wescott Cafaro, Slipping Through the Cracks: Why Can't We Stop Drugged Driving?, 32 W New Eng L Rev 33, 44 (2010) ("laws differ dramatically in both substance and application"); J. Michael Walsh, , A State-by-State Analysis of Laws Dealing With Driving Under the Influence ofDrugs, National Highway Traffic Safety Administration (December 2009) (laws vary in several states)8; Cameron Hardesty, Friends and Family are Primary Sources of Abused Prescription Drugs, White House Office of National Drug Control Policy Blog (April 25, 2012, 03:41 PM) http://www.whitehouse.gov/blog/2012/04/25/friends-and-family-are-primary- sources-abused-prescription-drugs (26% or less of abused prescription drugs are obtained from a prescribing physician; no indication of emergency room administration as a significant source). Appellants offer no objective support for their assertion that supposed defects in New York's regulation of the medical profession will be cured by creating a new cause of action in favor of non-patients. The physician's duty to her patient is 8 (available at http://druggeddriving.org/pdfs/WalshStatebyStateDrugLawsAnalysis811236.pdf 45 unaffected by the issues raised on this appeal, as evidenced by Ms. Walsh-Roman's action against the Respondents (R. 300, 322). Physicians are exposed to public profiling of their malpractice judgments and settlements. Public Health Law § 2995- a. Malpractice payments are tracked in the National Practitioner Data Bank. 45 CFR § 60.7. Physicians are subject to professional discipline for negligence. Education Law § 6530 [3], [4], [5]. Discipline can be imposed where there is no injury to a patient. Morfesis v. Sobol, 172 A.D.2d 897 (3d Dept. 1991). Hospitals are required by law to institute malpractice avoidance programs. Public Health Law § 2805-j. Despite unsupported averments that these measures are ineffective, Appellants offer no concrete support for the claim that their new cause of action in favor of non- patients will supply something lacking in the present regime. 46 POINT V NEW YORK SHOULD AVOID THE INCONSISTENCY AND CONFUSION FOUND IN OTHER STATES Review of the extra-jurisdictional cases relied on by Appellants reveals a collection ofad hoc determinations with no cohesive underpinning. In Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521 (Tenn. 1980), a trucking company sent a new driver to a clinic for certification. The clinic failed to ascertain that the driver was disabled, and the employer was sued after the driver's disability caused an accident. The trucking company was allowed to claim over against the clinic owner because there was "privity between appellant [trucking company] and Dr. Bridges". Id., at 528. In a case involving a motorist's claim that a health center failed to prevent a medicated patient from leaving the emergency room and driving, a Missouri trial level court granted summary judgment in favor of the health center on the grounds that no duty was owed to the motorist. The Missouri Court of Appeals reversed. 47 Robinson v. Health Midwest Dev. Group, WD 58290, 2001 WL 212776, at *1 (Mo Ct App Mar. 6,2001), as mod (May 1, 2001).9 The case was then transferred to the Missouri Supreme Court, which reinstated summary judgment in favor of the health center, finding the medical malpractice statute oflimitations was applicable, and that "[i]n light of this disposition the issues of duty or causation are not reached". Robinson v Health Midwest Dev. Group, 58 S.W.3d 519, 521 (Mo 2001). This Court should not be persuaded to adopt the radical approach taken by the Supreme Judicial Court ofMassachusetts, where three of six justices concluded that "a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient." Coombes v. Florio, 450 Mass 182, 190, 877 N.E.2d 567, 572 (2007) (emphasis supplied). The patient was a seventy-five year old man who was placed on an assortment of drugs for various chronic conditions. The patient was specifically advised by his doctor that he could resume driving after he completed lung cancer treatment. Months later, on the day of the accident, the patient was on a combination of eight medicines: Oxycodone, Zaroxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide. Id., 450 Mass at 184, 877 N.E.2d at 568. 9 Cited by Appellant as "2001 Mo. App. Lexis 352" (Appellant's Brief at 20). 48 As one ofthe dissenting Justices explained, a product liability type ofanalysis is not appropriately applied to physicians: [a] duty to warn generally arises in cases involving a product with an inherent danger.... This duty does not arise from of any affirmative relationship between a manufacturer and a user, but from a duty a manufacturer has to act reasonably. In the physician-patient context, however, the duty to warn is part of the duty of care the physician has for the patient ... That duty rarely involves warnings akin to information a manufacturer might give to potential users of its products, such as, "do not insert your finger between the rotating blades." Rather, it involves a process of communication and decision-making aimed at the well-being of the patient, and the patient alone, in which the advantages and risks ofparticular treatments are discussed and weighed. Coombes v. Florio, 450 Mass. 182, 210, 877 N.E.2d 567, 586 (2007) (Cordy, J., dissenting). The Supreme Court of Hawaii took up the case of a pedestrian who was hit when a driver fainted. The fainting episode was attributed to prazosin hydrochloride, the generic form of the antihypertensive Minipress,lOwhich was prescribed three days before the accident. The opinion does not specify the condition for which the 10 A discussion of this drug can be found in Marchione v. State, 194 A.D.2d 851(3d Dept. 1993). 49 drug was prescribed. The pedestrian claimed that the medicine was inappropriately prescribed, and that the doctor failed to properly warn the patient about driving. The court expressed concern about cases where large quantities of controlled substances were prescribed to persons who were likely to abuse them, but concluded that the doctor did not owe any duty to the pedestrian with regard to the decision to prescribe prazosin hydrochloride. As to the alleged failure to warn, the court concluded: [a] physician owes a duty to non-patient third parties ... where the circumstances are such that the reasonable patient could not have been expected to be aware of the risk without the physician's warning. Factors to consider in determining whether the reasonable patient could have been expected to be aware of the risk include: (1) the relative knowledge of the risk as between lay persons and physicians; (2) whether the patient has previously used the medication and/or experienced the adverse effect; and (3) whether a warning would otherwise have been futile. McKenzie v Hawai"i Permanente Med. Group, Inc., 98 Hawai'i 296, 308-09, 47 P.3d 1209, 1221-22 (2002)(emphasis supplied). It is fair to assume that adults are generally aware of the effect that narcotic painkillers have on driving ability, and it is beyond question that Ms. Walsh-Roman had personal experience with morphine (R. 235). While the emergency room record makes no specific reference to driving, Ms. Walsh-Roman was told to rest in bed 50 and beware ofdizziness and fainting (R. 237). Ifthe test established by the Supreme Court ofHawaii is applied to the case at bar, there was no duty. In B.R. ex reI. Jeffs v. W., 2012 UT 11,275 P.3d 228 (Utah 2012), a man who shot and killed his wife pleaded guilty to aggravated murder. The conservator ofthe couple's children sued the nurse practitioner and clinic that prescribed numerous medications to the murderer, claiming that the drugs caused the violent outburst. The court pronounced a duty of breathtaking scope, holding that healthcare providers generally may be liable to "nonpatients in the affirmative act of prescribing medication". Id., 2012 UT 11, ~ 40,275 P3d 228,238. On similar facts, the Supreme Court of Indiana reached the opposite conclusion: [a] physician's first loyalty must be to his patient. Imposing a duty on a physician to predict a patient's behavioral reaction to medication and to identifY possible plaintiffs would cause a divided loyalty. Were we to impose a duty on a physician to consider the risk of harm to third persons before prescribing medication to a patient, we would be forcing the physician to weigh the welfare of unknown persons against the welfare of his patient. Such an imposition is unacceptable. The physician has the duty to his patient to decide when and what medication to prescribe to the patient, and to inform the patient regarding the risks and benefits of a particular drug therapy. He 51 should fulfill that duty without fear of being exposed to liability to unknown, unidentified third persons. Webb v. Jarvis, 575 N.E.2d 992,997 (Ind. 1991), quoted in Shortnacy v. N. Atlanta Internal Medicine, P.C., 252 Ga. App. 321,327, 556 S.E.2d 209,215 (Ga. Ct. App. 2001). In Taylor v. Smith, 892 So. 2d 887 (Ala 2004), a methadone clinic was found to have a duty to a motorist who was injured by its patient. In that case, the clinic had actual knowledge that the patient habitually abused other drugs in violation of program requirements yet continued to administer methadone to her. It was alleged that, on the day of the accident, the clinic released her immediately upon administering the methadone. To the extent that the Taylor relied on the Texas Court of Appeals decision in Gooden v Tips, 651 S.W.2d 364 (Tex. App. 1983)11, it is noteworthy that the Texas Supreme Court declined to follow Gooden. Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998). A concurring justice noted that Gooden could not be good authority in Texas. Praesel, at 399 (Enoch, J, concurring). [I Cited by Appellants at page 100 of their brief. 52 The Appellate Division analyzed Gooden as presenting a situation where a doctor administered medication "the side effects ofwhich are not known to a lay person". Cartier v. Long Is. ColI. Hosp., 111 A.D.2d 894, 895 (2d Dept. 1985) (emphasis supplied). In a later case, the Appellate Division cited Gooden as an example of a case that is inconsistent with the common law ofNew York. Ellis v. Peter, 211 A.D.2d 353, 357 (2d Dept. 1995). Gooden was seen as not controlling by this Court and the Appellate Division in Purdy v. Pub. Adm'r ofWestchester County, 72 N.Y.2d 1,9-10 (1988), affirming, 127 A.D.2d 285, 291 (2d Dept. 1987). The Florida District Court ofAppeals allowed a similar claim on the condition that physician's culpability was worse than mere negligence or malpractice. The court required "that the doctor either acted in bad faith or beyond the scope of his practice". Cheeks v. Dorsey, 846 So. 2d 1169, 1173 (Fla. Dist. Ct. App. 2003). New Mexico distinguishes between accidents ansmg from medications administered by the physician and accidents linked to prescription medicines that are not taken in the doctor's presence. Compare Lester ex reI. Mavrogenis v. Hall, 1998-NMSC-047, 126 N.M. 404, 970 P.2d 590, (N.M. 1998) (no duty where accident precipitated by lithium toxicity occurred five days after last treatment) with 53 Wilschinsky v Medina, 1989-NMSC-047, 108 N.M. 511, 775 P.2d 713 (N.M. 1989) (duty existed where accident took place 70 minutes after injection ofdrug, effects of which peak 30-50 minutes after injection and may have been enhanced by additional drugs). In Welke v. Kuzilla, 140 Mich. App. 658, 365 N.W.2d 205 (Mich. Ct. App 1985), the physician owned a vehicle that was driven by another person who killed someone in an accident. The next of kin of the deceased brought an action for negligence. The plaintiff learned that the doctor had prescribed numerous medicines for the driver including pain pills, muscle relaxants, diet pills and Valium, as well as injecting her with an unknown substance the night before. The plaintiffs motion to amend the complaint to include a medical malpractice claim against the doctor was denied as untimely. A separate action for medical malpractice ensued. The court found that the action was for medical malpractice, despite the lack of a physician-patient relationship between the injured party and the doctor. The court said the characterization of the claim as malpractice was good because it would come under the physician's required medical malpractice insurance. Welke v. Kuzilla, 144 Mich. 54 App. 245, 255, 375 N.W.2d 403, 407 (Mich. Ct. App. 1985). The Michigan legislature subsequently imposed limits on the damages recoverable in medical malpractice actions. Mich. Comp Laws Ann 600.1483. In Joy v. E. Maine Med. Ctr., 529 A.2d 1364 (Me. 1987) a patient with an eye abrasion was treated with an eye patch. The court held that the emergency room physician had a possible duty to an injured motorcyclist to warn the patient not to drive his car. It was left for the jury to decide whether the eye patch was such an obvious impediment to driving that the warning was unnecessary. The extent to which the eye abrasion obstructed the patient's vision before application of the eye patch is not addressed in the opinion. The Supreme Court ofIllinois explained why duty cannot be imposed in these circumstances: [a]l1 that is necessary for a physician to extinguish his potential liability, in the plaintiffs view, is for the physician to tell the patient that the drug will diminish his physical and mental abilities, that he should not drive for a designated time period, and that he should not consume alcohol. The plaintiff overlooks that the appellate court decision explicitly extends the duties of the doctors-and, for that matter, all the defendants-beyond the patient to the general public. Such a broad duty extended to the general public would expand the physician's duty of care to an 55 indeterminate class of potential plaintiffs. Our General Assembly, as we discussed previously, has very recently enacted major medical malpractice legislation to reduce the burden of litigation against health care professionals. We must conclude that the plaintiffhere does not fall into the class of persons to whom the duty of care is owed by the defendant doctors. Kirk v. Michael Reese Hosp. and Med. Ctr., 117 Ill. 2d 507, 532, 513 N.E.2d 387,399 (1987). The cases that allow the cause of action show disturbing inconsistency. The permissible claimants may include the victim of a confessed murderer or everyone foreseeably put at risk. The challenged conduct may include any failure to warn of side effects, or be limited to improper prescribing, or personal administration medication, or acting in bad faith. The rationale offered for allowing the cause of action includes making the proceeds ofa doctor's malpractice insurance available to a person who was hit by a vehicle owned by the doctor. Other variables that require consideration are whether there was a failure to warn against driving or affirmative advice encouraging driving, and whether a reasonable layperson knew or should have known that the particular medication would diminish driving capacity. 56 CONCLUSION Appellants argue for the most expansive extension of liability imaginable (Appellants' Brief at 102-106), while suggesting that liability might be reasonably limited to cases where the physician personally administers medication and an automobile accident occurs shortly thereafter (Appellants' Brief at 117-118). Yet the purpose for this would be to "transcend one specific context" by "denouncing drug impaired driving" so as to "deter the tort with medical tortfeasors" (Appellants' Brief at 118). This is not calculated to limit litigation to any controllable degree. While the analogy between a physician and a bartender (Appellant's Brief at 20-21) is hardly appropriate, it has been observed that the dram shop law "creates an expansive cause of action completely unknown at common law." Matalavage v Sadler, 77 A.D.2d 39,43 (2d Dept. 1980). This Court may deem it prudent to defer such a sweeping change in public policy toward physicians to the legislature. The Appellate Division did not require Appellants to include magical words in their proposed amended complaint, nor did it apply an algebraic formula. It properly held that Appellants do not allege facts sufficient to demonstrate that 57 Respondents had a duty to them. The established jurisprudence of this State sets a reasonable limit to the people who can sue a doctor for malpractice. The decision and order of the Appellate Division should be affirmed. Dated: January 22, 2015 Scottsdale, Arizona Respectfully submitted, By bUJ~ ? James W. Tuffin One CAPlaza Suite 225 Islandia, New York 11749 (516) 359-6420 Appellate Counsel to Santangelo, Benvenuto & Slattery Attorneys for Defendants-Respondents Regina E. Hammock, D.O., Christine DeLuca, RPA-C, and Island Medical Physicians, P. C. 1800 Northern Boulevard Roslyn, New York 11576 (516) 775-2236 58 'i;" SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------}{ EDWIN DAVIS, Plaintiff, -against- LORRAINE A. WALSH, Defendant. -------------------------------------------------------------------------}{ Papers Read on this Motion: Defendant's Notice of Motion 01 Plaintiffs Opposition }{}{ Defendant's Reply }{}{ MICHELE M. WOODARD J.S.C. TRIALIIAS Part 11 Index No.: 840512009 Motion Seq. No.: 01 DECISION AND ORDER The defendant moves by Notice of Motion for an order granting her summary judgment on the issue of liability. The plaintiff opposes the motion. The parties were involved in a motor vehicle accident on March 4, 2009 at appro}{imately 12:49 pm. According to the plaintiff, the accident occurred when the defendant's vehicle crossed a double yellow line and struck his vehicle. Prior to the accident, the defendant presented to South Nassau Communities Hospital Emergency department at approximately 7:30 in the morning complaining of abdominal pain, nausea and diarrhea. She was treated and released from the hospital and the accident occurred about one hour after her release. According to the defendant, she should not be held liable for the happening of the accident on the grounds that the subject accident was caused by a sudden and une}{plained altered consciousness and/or epileptic seizure suffered by her constituting a sudden medical emergency. Walsh has submitted the affirmation of Dr. Robert April wherein he indicated that Walsh lost control of her car either from a m~dication induced epileptic seizure or from a period of medical induced somnolence. Dr. April further opined that the emergency department decision to treat Walsh with Central Nervous System active medication and not to call for help in driving her home was a deviation from standard professional procedures. '" [A]1\ operator of an automobile who experiences a sudden medical emergency will not be chargeable with negligence provided that the medical emergency was unforeseen State of New York v. Susco, 245 AD 2d 854 [1997],. Here, defendant's medical records established that, for five hours prior to the accident she was in the hospital being treated for a myriad ofmedical problems, received treatment and left. It is unknown whether Walsh left with or without advisement about the effect the medication administered to her during her stay at the Hospital, if any, would have on her operation ofa motor vehicle. Walsh testified that she does not recall the accident at all. Viewing this evidence in the light most favorable to plaintiff and according him 51 • the benefit ofevery favorable inference that can be drawn therefrom ( see Negri v. Stop & Shop, 65 NY 2d 625 [1985] this Court determines that issues of fact remain as to whether defendant's emergency was foreseeable ( see Benamy v. City ofNew York, 270 AD 2d 183 [2000}. It is - therefore: ORDERED, that defendant's motion for summary judgment on the issue of liability is denied. ORDERED, that the parties are directed to appear in Central Jury for trial on June 28, 2011 at 9:30 a.m. This constitutes the Decision and Order ofthe Court. DATED: June 27, 2011 Mineola, N.Y. 11501 ENTER: • MICHELE M. WOODARD . J.S.C. F:\DECISION - SUMMARY JUDGMENlIDavis v. Walsh.wpd ENTERED JUN 302011 NASSAU COUNTY COUNTY CLERK'S OFFfC~