Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.BriefN.Y.October 15, 2015Index No: 1834/11 rro 6e Jlrgued CBy: Joseph G. Dell, Esq. (rrime CR,§quested: 30 :Jv1inutes) 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, CPfaintijfs-Jlppe{fants, -against- SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, and ISLAND MEDICAL PHYSICIANS, P.C., Index No.: 23966/09 (j)efendants-CR,§spondents. LORRAINE WALSH-ROMAN, • -against- CPfaintijf-CR,§spondent, REGINA E. HAMMOCK, M.D., ROBERT DEAN, M.D., CHRISTINE DeLUCA, P.A., SOUTH NASSAU COMMUNITIES HOSPITAL, and ISLAND MEDICAL PHYSICIANS, P.e., Index No.: 8405/09 'i (j)efendants-CR,§spondents. EDWIN DAVIS, -against- cpfaintiff, LORRAINEA. WALSH, (j)efendant. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS EDWIN DAVIS and DIANNA DAVIS DELL & DEAN, PLLC }lttorneys for pfaintiffs-}lppef[ants EDWIN DAVIS and DIANNA DAVIS 1325 Franklin Avenue, Suite 100 Garden City, New York 11530 Tel.: (516) 880-9700 Date: February 12, 2015 Fax: (516) 880-9707 TABLE OF CONTENTS Table of Authorities ................................................ . REPL Y ARGUMENT POINT I POINT II RESPONDENTS' ARGUMENT THAT THE THIRD-PARTY VICTIM MUST 'PERSONALLY' RELY LACKS MERIT ................................... 1 REPLY TO VARIOUS ARGUMENTS PRESENTED IN BOTH BRIEFS ...................................... 13 Conclusion ....................................................... 51 Rule 500.1(h) Submission ........................................... -a- TABLE OF AUTHORITIES New York Precedent Au/richtig v. Lowell, 85 NY2d 540 (NY 1995) ....................................................... 20 Bellevue South Assoc. v. HRH Constr. Corp., 78 NY2d 282 (NY 1991) .............. .41 Bing v. Thunig, 2 NY2d 656 (NY 1957) ................................................................ .42 Bleiler v. Bodnar, 65 NY2d 65 (NY 1985) ............................................................ .43 Caracci v. State, 203 AD2d 842 (3d Dept 1994) .................................................... 38 Carpenter v. Blake, 75 NY 12 (NY 1878) .......................................................... 21,37 Church v. Callanan Indus., 99 NY2d 104 (NY 2002) .............................................. 2 Codling v. Paglia, 32 NY2d 330 (NY 1973) ............................................................. 6 Conboy v. Mogeloff, 172 AD2d 912 (3d Dept 1991) .............................................. 19 Eaves Brooks Costume Co. v. Y.B.H Realty Corp., 76 NY2d 220 (NY 1990) ...... 10 Gray v. Sandoz Pharmaceuticals, 123 AD2d 829 (2d Dept 1986) ........................... 9 Heard v. City o/New York, 82 NY2d 66 (NY 1993) .............................................. 38 Innvar v. Liviu Schapira, 166 AD2d 632 (2d Dept 1990) ........................................ 9 Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1 (NY 2013) ......................... .41,45 Lauer v. City o/New York, 95 NY2d 95 (NY 2000) ............................................... 38 Lopez v. Precision Papers, 69 AD2d 832 (2d Dept 1979) ........................................ 9 MacPherson v. Buick Motor Co., 217 NY 382 (NY 1916) ....................................... 3 Matavage v. Sadler, 77 AD2d 39 (2d Dept 1980) ................................................... 34 McKinney v. Bellevue Hasp., 183 AD2d 563 (1st Dept 1992) ................................ 38 McNulty v. City a/New York, 100 NY2d 227 (NY 2003) ........................................ 2 Mowczan v. Bacon, 92 NY2d 281 (NY 1998) ........................................................... 9 New York Univ. v. Cont'l Ins. Co., 87 NY2d 308 (NY 1995) ................................ .41 Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579 (NY 1994) ......... 3 Raquet v. Braun, 90 NY2d 177 (NY 1997) ............................................................... 9 Rebollal v. Payne, 145 AD2d 617 (2d Dept 1988) ............................................ 23,24 Rebollal v. Payne, 135 Misc.2d 846 (1987) ........................................................... 23 Rivera v. N.Y. City Health & Hasps. Corp., 191 F Supp2d 412 (SDNY 2002) ..... 19 Rosenbaum v. Branster Realty Corp., 276 AD 167 (1st Dept 1949) ..................... .41 Schremp/v. State a/New York, 66 NY2d 289 (1985) ............................................. 19 Shajan v. South Nassau Communities Hasp., 99 AD3d 786 (2d Dept 2012) ......................................................................................................... 15 Stone v. William M Eisen Co., 219 NY 205 (NY 1916) ......................................... 18 Strauss v. Belle Realty Co., 65 NY2d 399 (NY 1985) .............................................. 3 Swensson v. New York, Albany Despatch Co., 309 NY 497 (NY 1956) .................. 6 Tobin v. Grossman, 24 NY2d 609 (NY 1969) ........................................................ 50 Weiner v. Lenox Hill Hasp., 88 NY2d 784 (NY 1996) ........................................... 12 11 Out-or-State Precedent B.R. ex reI. Jeffs v. W, 2012 UT 11,275 P3d 228 (Utah 2012) ............................. .49 McKenzie v. Hawaii Permanente Medical Group, 98 Haw. 296 (Haw. 2002) ...... 20 Taylor v. Smith, 892 So.2d 887 (Ala 2004) ............................................................ .45 Secondary Sources Bernard S. Black and Zenon Zabinski, The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform, Northwestern University Law & Economics Research Paper No. 13-09 (July 2014) ............................................................... 31,44 Charles Andel, et. aI., The Economics of Health Care Quality and Medical Errors, Journal of Health Care Finance, Vol 39, No.1 (Fall 2012) ............................... 31,32 David M. Studdert, et. aI., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, N Engl, J Med 2006; 354:2024-2033 ................. 11 Department of Transportation's National Highway Traffic Safety Administration, 2014 Roadside Survey of Alcohol and Drug Use by Drivers .................................. 36 J. Robert Hunter, The Current New York State Medical Malpractice Situation (December 17, 2007) ................................................................................................ 47 J. Robert Hunter & Joanne Doroshow, Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America (December 15,2011) ................................................................................................. 46 Marc A. Rodwin and Justin Silverman, Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall, Suffolk University Law School Research Paper No. 14-27 (August 20,2014) .................................... 50 Medicaid Redesign Team, Proposal To Redesign Medicaid: Proposal 131 (2011) ....................................................................................................................... 48 11l New York Patient Occurrence Reporting and Tracking Systems- NYPORTS- 2005,2006,2007 Report, by Richard F. Daines, M.D.- Commissioner of Health .......................................................................................... 29 New York Public Interest Research Group et aI., Questionable Doctors, (May 2014) ............................................................................................................... 26 New York State Office of Alcoholism and Substance Abuse Services, Drugged Driving (January 2011) ............................................................................................ 34 Office of the NY State Comptroller, Report 2005-S-21, Office of Professional Medical Conduct Complaints and Investigations Process, (August 2007) ............. 27 Public Citizen's Health Research Group Ranking of the Rate of State Medical Boards' Serious Disciplinary Actions, 2009-2011. ................................................. 25 Restatement Second Torts §324A(c)(1965) ............................................................ 18 Restatement Second Torts §311 (1965) ................................................................... 21 Restatement Second Torts §311 cmt(b) (1965) ....................................................... 21 Restatement Third Torts §43(c) (2012) ..................................................................... 1 Robert Pear, "Report Finds Most Errors at Hospitals Go Unreported," New York Times, January 6, 2012 ....................................................................................... 28,29 The Status of the Primary and Excess Medical Malpractice Market and the Future Needfor the Medical Malpractice Insurance Association, A Report to the Governor and the Legislature by the New York Superintendent of Insurance, (December 1, 1997) ................................................................................................. 4 7 2001 Press Release, State Health Department Study Shows that Majority of New York Hospitals are Not Reporting Adverse Incidents ............................................. 30 IV Statutory Authorities Education Law §6542(2) ......................................................................................... 33 10 NYCRR §94.2 ................................................................................................ 33,36 10 NYCRR §405.9(f)(7) .......................................................................................... 18 22 NYCRR §500.1(h) .............................................................................................................. 24 v REPL Y ARGUMENT POINT I RESPONDENTS' ARGUMENT THAT THE THIRD-PARTY VICTIM MUST 'PERSONALLY' RELY LACKS MERIT. Respondents Regina E. Hammock, D.O., Christine DeLuca, RPA-C, and Island Medical Physicians, P.C., (hereinafter collectively 'Hammock') argued that third-party liability can only arise when 'personal' reliance of the third-party victim occurs- even if the patient 'detrimentally' relied on her fiduciaries and detrimentally relied on the services. See, Hammock Brief at 35-37. Such an argument lacks merit and distorts tort principles. 1 Hammock has offered no concrete precedential support for her position. Instead, Hammock cited to cases from this Court where a third-party victim detrimentally relied, and from that, Hammock extrapolated that if a patient or intermediary detrimentally relied, then it is meaningless. In contrast, Restatement Third Torts § 43 ( c) (2012) states: An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if: 1 See also Main Brief at 72-80; 27-31. (c) ... the person to who the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking. (Emphasis Supplied.) Restatement Third Torts §43(c) (which replaced §324A(c)) is clear that third-party liability can arise when "the person to whom the services are rendered" detrimentally relied. (Respondents do not acknowledge the existence of the Restatement Third of Torts anywhere in their briefs.) See also, Church v. Callanan Indus., 99 NY2d 104, 111-112 (Stating third-party liability can exist "where the plaintiff has suffered injury as a result of reasonable reliance ... ") In McNulty v. City o/New York, 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. McNulty's rule had no mandatory qualification that the third-party victim had to personally rely. McNulty's use of the language "arises because of the doctor's treatment of the patient" is fully consistent with §43( c )'s principle that third-party liability can exist when "the person to whom the services are rendered" detrimentally relied. Forgetting for a moment that Respondents are asserting that it is reasonable for this Court to ignore the Restatement of Torts and alter the McNulty rule, Respondents' argument also contravenes considerable common law precedent of 2 this Court. This Court has continuously reaffirmed the following principle: "As this court has long recognized, an obligation rooted in contract may engender a duty owed to those not in privity, for there is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use." (Emphasis Supplied.) Strauss v. Belle Realty Co., 65 NY2d 399,402 (NY 1985); In Accord, Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579, 586 (NY 1994); MacPherson v. Buick Motor Co., 217 NY 382,393 (NY 1916). Respondents' reliance argument is inconsistent with the above principle. Although not theoretically impossible, in almost all cases where a third-party victim personally relied on services, then Respondents would know about the reliance. In other words, Respondents are arguing that detrimental reliance can only create liability when the victim is personally known to Respondents. Strauss, Palka, & MacPherson hold otherwise. In Palka v. Servicemaster Management Servs. Corp., 83 NY2d 579 (NY 1994), this Court found a duty pursuant to the §324A(b) principle, arising from the tortfeasor performing duties of a global contract. In Palka, the third-party victims 3 were not personally aware of the relevant contract, and the third-party victims did not personally rely on the performance of the services. In Palka, it was the detrimental reliance of the hospital-intermediary that forged the basis of the third- party liability. Consequently, this Court has already held that third-party victims' personal reliance is not necessary for third-party liability to exist when the contract qualifies as a §324A(b) contract. No valid reasoning exists why this Court should use a harsher standard for §43( c )/§324A( c) detrimental reliance claims as oppose to §324A(b) detrimental reliance claims.2 In Palka, the intermediary was an entity, which was well-equipped to absorb the economic liability arising from third-party liability. This will be the situation in most §324A(b) cases. In contrast, with most §43( c )/§324A( c) cases, the intermediary is an individual who is not well equipped to absorb the economic liability arising from third-party liability. Correspondingly, with most §324A(b) contracts, the intermediary-institution can bargain for an indemnification agreement with the tortfeasor. Typically, this is not likely with §43( c )/§324A( c) individualized contracts, especially with patients in the medical context. In essence, those who have §324A(b) contracts are typically in much better position 2 Appellant will assume arguendo that the contract in this case does not qualifY under §324A(b), raising the question whether §324A( c) detrimental reliance should have a higher threshold than §324A(b) detrimental reliance. 4 to protect themselves than those entering into §43( c )/§324A( c) type contracts. This is both before the relevant accident and after the relevant accident. Yet personal reliance of the third-party victim is not a factor in the §324A(b) analysis, and more reason exists to have a less stringent legal threshold with §43(c)/§324A(c) claims because of the intermediary's inability to protect herself in the §43(c)/§324A(c) context. If the law is that third-party personal reliance is necessary to create valid §43( c )/§324A( c) claims- even if a patient detrimentally relies- but third-party personal reliance is not necessary for §324A(b) claims, then the common law is favoring those with better bargaining position, and disfavoring those with the weakest bargaining position. The common law is also allocating more economic liability to those less suitable to absorb it (§324A(c) individuals), and allocating less economic liability to those most suitable to absorb it (§324A(b) entities). New York's minimal personal injury automobile coverage is $25,000, while Respondents have insurance in the millions. In the context of this case, a finding of no duty would allocate more economic liability on the party in the worst position to absorb it. Along with §324A(b) reliance, embedded within all of New York's third- party common law tort doctrines is the concept that liability can exist even without 5 personal reliance from third-party victims. For example, the 'control' doctrine imposes liability despite no personal reliance from the third-party victims, or knowledge of the relevant services. For example, the launching of harm doctrine imposes liability despite no personal reliance from the third-party victims, or knowledge of the relevant services. For example, personal third-party reliance is unnecessary when a product malfunctions. See, Codling v. Paglia, 32 NY2d 330, 338-340 (NY 1973); Swensson v. New York, Albany Despatch Co., 309 NY 497 (NY 1956). Respondents' argument that §43(c)/§324A(c) claims require- in all cases- personal reliance from third-party victims- even if a patient detrimentally relied on a fiduciary- is inconsistent with every single third-party common law tort doctrine of New York State. If the Court adopted Respondents' reasoning, then disharmony in the common law would emerge where personal reliance of third-party victims is mandated for the application of §43( c )/§324A( c) principle, but not mandated for all the other common law doctrines. Generally, tort law is meant to regulate, prevent, or administer justice arising from hazardous conditions, hazardous actions, and/or dangerous situations. In this matter, detrimental and reasonable reliance from the patient- Ms. Walsh- 6 created hazardous activity and a dangerous situation. Respondents are asserting that their creation of hazardous activity and their creation of a dangerous situation- by misleading a patient- should not trigger the application of the §43( c )/§324A( c) principle/doctrine. Instead, Respondents are requesting that the Court hold that a second layer of reliance must exist/originate from the third-party victim for the doctrine to apply, even if the second layer of reliance realistically effects nothing, and is factually pointless. Respondents' 'double reliance' argument means that even if they create dangerous situations, or they cause dangerous activity, tort law is inapplicable. Respondents' argument that §324A(c) requires 'double reliance' has as much practical utility as adding a new layer of personal third-party reliance to the control doctrine, launching of harm doctrine, §324A(b) doctrine, and New York's product's liability precedent. And said level of practical utility is none. Notably, the relevant issue is whether this Court should require third-party 'personal' reliance- and not- third-party 'detrimental' reliance. This is because when the patient detrimentally relies upon Respondents, creating the dangerous situation/transaction, the third-party's reliance is factually meaningless, and said reliance has no effect on any thing- and thus it cannot be 'detrimental.' Respondents' 'double reliance' argument hopes to create a legal standard 7 ensuring the §43( c )/§324A( c) principle/doctrine only exists in theory without ever realistically occurring. How is a third-party victim to know the impaired driver was just negligently discharged? Respondents' 'double reliance' argument is not requesting that the Court mandate a legal element that serves a realistic purpose, but instead Respondents are requesting the Court create an arbitrary legal criterion. There is a reason why Respondents' version of the doctrine is so foreign from the Restatement of Torts. Generally, Respondents asserted that the launching of harm doctrine should be restricted to only apply to cases where the tortfeasor literally created or exacerbated a 'dangerous condition.' (See South Nassau Brief at 30-32.) If the Court accepted Respondents' launching of harm argument and accepted Respondents' 'double reliance' argument, then New York's tort law would excuse, condone, and not regulate the creation of 'dangerous activity,' and correspondingly, the creation of dangerous situations arising from dangerous activity that cause harm to third-parties. It is unclear why the creation of dangerous conditions giving rise to dangerous situations would create third-party liability, but not the creation of dangerous activities giving rise to dangerous situations. Such third-party tort jurisprudence would clearly not be what the Restatement of Torts intended. Such 8 third-party tort jurisprudence would create a hole in the common law, despite the lessening importance of privity. Additionally, viable third-party actions would exist under current law when the person to whom the services was rendered detrimentally relied. See generally, Raquet v. Braun, 90 NY2d 177, 182 (1997), citing, Sommer v. Federal Signal Corp., 79 NY2d 540,559 (1992); Mowczan v. Bacon, 92 NY2d 281,285 (1998); See also, Lopez v. Precision Papers, 69 AD2d 832 (2d Dept 1979); Gray v. Sandoz Pharmaceuticals, 123 AD2d 829, 830 (2d Dept 1986); Innvar v. Liviu Schapira, 166 AD2d 632 (2d Dept 1990). The fact that such third-party suits are viable lends support to not creating a hole in the common law, and creating the disharmony that Respondents seek. In this case, the §43( c )/§324A( c) principle/doctrine applies because Appellant alleged in the Complaint that Respondents failed to warn. Additionally, if discovery evidences that Respondents violated their own discharge protocols, then this may also give rise to a valid claim under §43(c)/§324A(c). In regards to this point, Restatement 3d Torts §43( c) states that third-party liability could exist when "the person to whom the services are rendered ... relies on the actor's exercising reasonable care in the undertaking." (Emphasis Supplied.) If Respondents violated their own discharge protocols, then they did not utilize 9 'reasonable care in the undertaking' and that failure could give rise to third-party liability. Correspondingly, the 'undertaking' entails all of Respondents' 'professional duties,' including following protocols. In other words, a patient should be allowed to rely on Respondents' 'course of conduct,' and rely on Respondents being competent in the endeavor- and not just part of the endeavor. Although a patient may rely on a warning, or lack thereof, the patient also relies on the entirety of the undertaking. For example, when a §324A(b) contract is violated, the intermediary may be personally aware of the existence of the contract, but it is doubtful if not impossible that the intermediary is personally aware of every single task, or technicality, that the tortfeasor is doing. And similarly, it is doubtful if not impossible that the intermediary is personally aware of what tasks were negligently omitted, or what tasks were negligently performed causing the harm. The reliance is on the contract's existence and expertise of the tortfeasor. Similar to the 324A§(b) context, when an individual contracts with someone with 'specialized knowledge,' the individual cannot be aware of every technicality being performed by the person with 'specialized knowledge.' The reliance- such as with a patient- is on the existence of the contract, and on Respondents using their expertise and fiduciary powers with due care. Cf., Eaves Brooks Costume Co. v. YB.H. Realty Corp., 76 NY2d 220, 226 (NY 1990) 10 (Stating third-party liability can exist if "performance of contractual obligations has induced detrimental reliance on continued performance ... In such a case, the defendant has undertaken not just by his promises but by his deeds a legal duty to act with due care.") The determination as to whether Respondents violated their own discharge protocols would be reasonablely objective, and would not involve the possible 'he said/she said' that could arise with a failure to warn claim. For example, if Respondents had a protocol in place that a patient is not to be discharged after administration of certain medications unless another driver is present, or a taxi comes, it is fairly easy to determine if this protocol was violated. Consequently liability arising from violation of such a protocol would likely not create frivolous lawsuits- and as importantly would not allow for the interposing of frivolous defenses. Cf David M. Studdert, et. aI., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, N Engl, J Med 2006; 354:2024-2033 (May 11,2006) (Conducting an independent assessment of 1452 closed claims, and concluding that the interposing of frivolous defenses arising from meritorious claims was more of a systematic problem than litigating frivolous lawsuits, and finding that 80% of administrative/litigation expenses pertain to the litigation of 11 meritorious claimsy Discharging an impaired patient in violation of discharge protocols is administrative incompetence that typically sounds in negligence. See, Weiner v. Lenox Hill Hasp., 88 NY2d 784 ("The adequacy of the Hospital's blood testing and screening procedures- does not implicate questions of medical competence or judgment linked to the treatment of Kom, but instead turns on the Hospital's independent duties ... ") In sum, Respondents' 'double reliance' argument proposes that this Court ignore the Restatement of Torts; alter McNulty's 'rule'; jettison a principle that is embedded in all of New York State's third-party common law doctrines; and issue a holding that creates an artificial construct (i.e., 'double reliance') that serves no legitimate purpose besides allowing Respondents and their insurers to escape accountability. In contrast, Appellant proposes that the reliance doctrine, and tort law, apply (i) if Respondents cause a patient to detrimentally rely; (ii) said detrimental reliance creates hazardous activity or creates a dangerous situation; and (iii) the 3 The lead author, David Studdert, is an Associate Professor of Law and Public Health at Harvard School of Public Health. The article is available at http:www.nejm.org/doi/fullll 0.1 056INEJMsa0544 79#t=article 12 harm arises out of the Respondents' treatment (McNulty) and/or professional duties (Landon). Ms. Walsh had a right to rely on her fiduciaries. A betrayal of that fiduciary reliance should cast accountability upon Respondents. POINT II REPLY TO VARIOUS ARGUMENTS PRESENTED IN BOTH BRIEFS. Hammock noted that Ms. Walsh visited the South Nassau Emergency Department on the day before the accident, and she left because it was 'too crowded.' (Hammock Brief at 3. ) It is true that after Ms. Walsh was discharged on the date of the accident that the South Nassau Emergency Department was crowded by one less patient sitting in a chair, and yet, New York's roads were crowded by one more drug impaired driver. Within one hour after Ms. Walsh's discharge, the South Nassau Emergency Department was crowded by one less patient sitting in a chair, and yet, two new patients were in transport to hospitals to receive extensive medical treatment after a head-on collision. Whenever Appellant seeks treatment in the future for his traumatic brain injury, his treating doctors' offices will be crowded with one extra patient. Hammock predominately conceded that the patient-physician relationship is a 'special relationship' under precedent, but argued this should effect nothing. 13 Hammock's brief went to great lengths to argue the merits of the case, and Hammock argued that indications, or possible inferences, exist in Ms. Walsh's chart that she was warned not to drive. The truth is that such a warning is not mentioned anywhere in the chart or record. Notably, the procedural history in this appeal does not include a summary judgment motion interposed by Respondents in the Walsh v. South Nassau action. Consequently, the gamesmanship in Hammock's brief that the patient was actually warned to drive clashes immensely with the actions and conclusions of Respondents' learned counsel at the trial level. The within appeal does not arise from a summary judgment motion, but instead from a §3211 motion interposed before any discovery. Hammock's attempt to interpose arguments that manipulate an incomplete Appellate Record should be of no moment. In this vein, the within Appellate Record contains no discovery from Respondents that was provided in this action, including any information pertaining to South Nassau's discharge protocols and/or evidence reflecting whether the protocols were violated. It is Appellant's position that such protocols must exist and that Respondents interposed their §3211 motion in order to prevent Appellant from obtaining same. Assuming arguendo that the underlying motion should be deemed a 14 summary judgment motion by this Court, the motion is easily denied. Respondents submitted no expert evidence, nor any evidence, to shift the burden to Appellant, and failed to prove aprimajacie case. Consequently, Hammock's critique of some of the substance of Appellant's expert- in arguing the merits- is irrelevant when considering Appellant's expert opinion need not be evaluated on a summary judgment motion since Respondents never shifted the burden because they submitted no evidence pertaining to the merits of the claims. See generally, Shajan v. South Nassau Communities Hasp., 99 AD3d 786, 787 (2d Dept 2012)("Moreover, Hammock did not submit an expert's affirmation in support of her motion. Accordingly, she also failed to establish,primajacie, that she did not deviate or depart from accepted medical practice in her supervision of the care rendered to the injured plaintiff by [physician's assistant] Janicek, or that any alleged departure was not a proximate cause of the injuries allegedly sustained by the injured plaintiff.") Assuming arguendo that the Respondents did prove, prima jacie, entitlement to summary judgment, then a question of fact exists as to the failure to warn claim. Ms. Walsh's chart has no indication that the patient was warned not to drive. The chart does not contain any handwritten indication, nor any computerized typed warning- similar to the other computerized warnings issued to 15 Ms. Walsh. Though the chart has no reference to the occurrence of any warning not to drive, Hammock basically argued that this Court should hold that the chart contains a warning not to drive as a matter of law. In essence, Hammock wants the Court to use a judicial pen to add 'do not drive' to Ms. Walsh's chart. Hammock attached to her brief a summary jUdgment decision arising from the Davis v. Walsh action, where the Supreme Court recited parts of an expert opinion from Ms. Walsh's expert. The Supreme Court noted that Ms. Walsh's expert opined that the cause of the accident was either a "medication induced epileptic seizure or from a period of medical induced somnolence." (Emphasis Supplied.) Contrast, Hammock Brief at 6 (Noting that the summary judgment decision states "that the accident 'was caused by a sudden and unexplained altered consciousness and/or epileptic seizure' .") Ms. Walsh's own expert has admitted that the narcotics that Respondents introduced into Ms. Walsh's system were a cause of her collision. As to proximate cause, the proper relevant warning pertains to the 'activity' of not driving. Respondents do not dispute this. Since Respondents failed to warn Ms. Walsh to avoid driving, a jury question arises regarding whether said warning, if it occurred, would have caused Ms. Walsh to avoid the 'activity' of driving. In other words; since the negligence is a failure to warn the patient not to do the 16 specific activity of driving, then the relevant causation issue is whether Respondents' negligence was a substantial factor in Ms. Walsh getting behind the wheel. What precise medical mechanism caused Ms. Walsh to swerve into oncoming traffic is largely irrelevant. Assuming arguendo that the relevant causation issue is not the activity of driving, then Ms. Walsh's expert's opinion that the accident was caused by "medication induced epileptic seizure" or a "period of medical induced somnolence" would create a question of fact as to causation. Importantly, a third-party action was commenced in this case. So Hammock's attempt to illustrate- it seems- that Respondents will typically argue in failure to warn cases that a warning occurred in some fashion is immaterial. Respondents will have to prove at a trial in the third-party action of this case- and probably in all similar cases in the future via third-party actions- whether they warned the patient or not, irrespective of the results of this appeal. In fact, most of Respondents' arguments, including policy arguments, were based on the assumption that a third-party action does not exist in this case, and will not exist in most future cases with similar facts. This assumption is simply erroneous. Because of this erroneous assumption, many of Respondents' arguments, including policy arguments, are not arising from New York 17 jurisprudence and a realistic synopsis. In other words, most of Respondents' arguments arise from a fiction and erroneous assumption, corrupting the logical integrity of the arguments. Respondents argued that a duty should not exist in this case because a 'divided loyalty' between the physician and patient could emerge. (Hammock Brief at 27-28; South Nassau at 36-37.) Respondents' argument assumes that a patient has a legitimate interest in driving cognitively impaired. Respondents argued that 10 NYCRR §405.9(f)(7)- which mandates that Respondents' discharge of a patient not create a "medical hazard"- is irrelevant to this case because the patient was discharged from the Emergency Department. (Hammock's Brief at 28; South Nassau Brief at 24.) Are Respondents arguing that they should be entitled to create 'medical hazards' upon discharging patients from the Emergency Department? On the one hand, Respondents represented in their briefs that they truly care about their fiduciary duties, and then in the next breathe, they requested that jurisprudence be created that allows them to create medically hazardous situations upon discharge. Respondents' §405.9(f)(7)/medical hazard argument best exemplifies the premise that underlies all their positions, namely a disdain that legally enforceable minimal safety rules exist. 18 South Nassau argued that "Appellant attempts to take, out of context, language in McNulty," and South Nassau argued that Appellant is unduly twisting McNulty by arguing that the Court held that a duty could exist if the harm arose from the treatment. (South Nassau Brief at 14.) Though McNulty stated "[u]nder the rule stated, the harm complained of by the third person arises because of the doctor's treatment of the patient," South Nassau argued this really means that the 'rule' is that a duty will not exist if the harm arises from the treatment (i.e., South Nassau argued that the 'rule' is actually the complete opposite of what McNulty said the rule is). South Nassau's argument lacks merit. South Nassau argued that Schrempfv. State of New York, 66 NY2d 289 (1985) supports its interpretation of McNulty and/or its interpretation of the 'duty' analysis. Schremp/does not. Schrempf found that a duty existed. See, Rivera v. N. Y. City Health & Hasps. Corp., 191 F Supp2d 412,419 (SDNY 2002), discussing Schremp/, (Noting Schrempfheld that "there is both a duty to the inmate to provide him with reasonable rehabilitational conditions under the circumstances and to the outside public to restrain the dangerous, or potentially dangerous, so that they may not harm others. The [Schremp}] court also observed that the State has frequently been held liable for the consequences of its breach of duty to protect others from the acts of the mentally ill confined to State institutions. ") 19 Respondents relied on Conboy v. Mogeloff, 172 AD2d 912 (3d Dept 1991). (See South Nassau Brief at 26; Hammock Brief at 11-12.) In Conboy, the defendant-doctor prescribed [not administered] the patient-mother medication and erroneously advised her to drive on the medication. Subsequently, the patient- mother and her three children were in a car accident. The Third Department held no duty extended from the defendant-doctor to the children. Conboy found no duty because the "[Patient] Dillenbeck was free to accept or reject defendant's diagnosis and advice and was at liberty to seek a second opinion." The reasoning for Conboy's holding is contrary to principles enunciated by this court. Compare, Aufrichtig v. Lowell, 85 NY2d 540, 546 (NY 1995) ("The physician-patient relationship thus operates and flourishes in an atmosphere of transcendent trust and confidence and is infused with fiduciary obligations"); Stone v. William M Eisen Co., 219 NY 205,208-209 (NY 1916); Restatement 2d §324A(c). In our case, Ms. Walsh was not free to seek out a second option. She was admitted to Respondents' Emergency Department. She was treated with IV narcotics, and then she was discharged without an appropriate warning not to operate a car. In McKenzie v. Hawaii Permanente Medical Group, 98 Haw. 296, 306-309 (2002), the Hawaiian high-court noted that Conboy offered 'weak support' for its 20 analysis, and McKenzie held: In this regard, we disagree with the categorical reasoning of the New York Appellate Division in Conboy . .. [Conboy held that] the patient was free to accept or reject defendant's diagnosis and advice and she was at liberty to seek a second opinion ... Although it is true that the doctor could not have 'controlled' his patient, the patient could not have acted upon the doctor's advice in an informed manner if the advice was inaccurate or incomplete. McKenzie's commentary on Conboy finds support in this Court's jurisprudence. See, Carpenter v. Blake, 75 NY 12, 18 (NY 1878)("[C]ould it be claimed that the defendant [physician] 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. .. "); See also, Restatement 2d Torts §311 & §311 cmt(b) ("The rule [regarding negligent misrepresentations involving risk of physical harm] stated in this Section finds particular application where it is part of the actor's business or profession to give information upon which the safety of the recipient or a third person depends. Thus it is as much a part of the professional duty of a physician to give correct information as to the character of the disease from which his patient is suffering, where such knowledge is necessary to the safety of the patient or others ... "); Contrast, South Nassau Briefat 13 (Arguing Ms. Walsh's actions were 'voluntarily' even if Respondents 21 failed to warn her not to drive.) If Conboy's reasoning is persuasive, then in typical medical malpractice cases pertaining to a mis-diagnosis, the cases should be dismissed on proximate cause grounds. For example, if a physician mis-reads a radiological film, leading to a mis-diagnosis of a patient's cancer, then according to Conboy's reasoning, the patient was obligated to obtain a second opinion and have another physician read the chest x-ray. To Appellant's knowledge no precedent has used such reasoning to dismiss a case. In effect, Conboy's reasoning attempts to redefine the reasonably prudent person/patient standard to require a reasonable prudent patient to always obtain a second opinion and/or to always distrust the physician. In doing so, Conboy's reasoning excuses negligent actions by physicians, and refuses to acknowledge the fiduciary nature of the physician-patient relationship. Additionally, assuming that Conboy's reasoning does not merely create a legal fiction, if every patient sought a second opinion, then it would certainly cause a medical treatment crisis, and waste medical resources to an unprecedented level. The lack of support for Conboy's reasoning is possibly why it was cited one year after it was rendered- in 1992- and since then, has never been cited by a New York Appellate Court. 22 Although Conboy's reasoning is contrary to principles of this Court, Conboy's holding, arguably, is valid because there were three injured third-party victims in that accident, which may create too much economic loss from one accident, mandating a finding of no duty on policy grounds. In this case, only one third-party victim exists. Conboy's 'control' conclusion is also arguably valid because in the prescription context there is no physical custody, and there is no limit on the time period that the 'control' would last. In contrast, in the 'administration' context, like herein, the control doctrine applies for a fixed limited duration of time. Hammock argued that in Rebollal v. Payne, 145 AD2d 617 (2d Dept 1988), the Second Department held that a duty does not extend beyond the patient. (Hammock Brief at 11-12.) In Rebollal, a recovering drug addict (Mr. Payne) was administered methadone at a County of Suffolk outpatient voluntary drug rehabilitation facility. Subsequently, Mr. Payne was involved in a car accident with the plaintiffs decedent. The defendant-County moved for summary judgment, and the lower court granted summary judgment because the plaintiff failed to prove a triable issue of fact as to proximate cause. See, Rebollal v. Payne, 135 Misc.2d 846,847-848. The Supreme Court found that the plaintiff could not prove proximate cause partially because Mr. Payne testified that "he had 23 no difficulty operating his vehicle." (Id. at 848.) The Second Department affirmed dismissal. 4 Assuming arguendo that Rebollal affirmed because of a finding of no duty to 'control,' Rebollal was rendered before this Court rendered Hamilton in 2001 and Holdampf in 2005 embracing an 'actual control' standard. Additionally, Rebollal only analyzed for the existence of a duty pursuant to the 'control' doctrine, and did not analyze the existence of a duty pursuant to the launching of harm doctrine, reliance doctrine, or 'displacement' doctrine (i.e., §324A doctrines. ) Hammock argued that jurisprudence that embraces the principle of accountability is imprudent because physicians are subject to professional discipline for negligence, and because hospitals have malpractice avoidance programs. (Hammock Brief at 46.) Obviously, none of these programs 4 It is not entirely clear on what basis Relollal affirmed the dismissal. In the version of the decision in the Appellate Division Reports, the Second Department stated on at the end of the decision "[See, 135 Misc2d 846]", which is the trial court decision, indicating the Court, or part of the Court, was affirming on proximate cause grounds. The Appellate Division Reports is published by New York State Law Reporting Bureau. Yet, in the version of the case reported in New York Supplement, the reference to the trial decision is omitted. New York Supplement was published by West. Copies of the New Appellate Division Report and New York Supplement decisions are attached at the end of this brief pursuant to 22 NYCRR §500.1(h). 24 compensate injured victims. As stated in the main brief, studies show adverse events occur in one-third of all hospital admissions and medical negligence is not declining- but actually rising. See, Main Brief at 95. Thus, to any extent the programs Hammock discussed were designed to reduce medical negligence, they are ineffective. As to the point that physicians are subject to professional discipline for negligence, in 2011, New York's Medical Licensing Board was involved in approximately 280 'serious' disciplinary actions (meaning actions that involved license revocations, surrenders, suspensions and probationlrestrictions). In 2011, New York had approximately 89,794 physicians practicing in the State. This averages out to 2.98 disciplinary actions for every 1,000 practicing physicians in New York. 5 So 3 out of every 1,000 physicians are involved in disciplinary actions, and Hammock is asserting this is sufficient oversight to displace tort law. In 2014, the New York Public Interest Research Group Fund- a nonpartisan, non-profit advocacy organization- issued a report containing the findings of its meta-analysis of the New York State Department of Health's Office of Professional Medical 5 See, Public Citizen's Health Research Group Ranking of the Rate of State Medical Boards' Serious Disciplinary Actions, 2009-2011, at Table # 1, available at http://www.citizen.org/documents/2034.pdf 25 Conduct's ("OPMC") actions over a 10 year period oftime.6 Findings arising from OPMC data were the following: • Over 77% of doctors sanctioned for negligence by OPMC were allowed to continue to practice. (Id. at 1.) • Nearly 60% of New York State actions against doctors were based on sanctions taken by other states, the federal government, or the courts- not directly as the result of an OPMC-initiated investigation (Id. at 1.) • There was a 'staggering' increase in the number of doctors per capita in New York State, 'well in excess of the increase in the state's population' . More specifically, over the past ten years, "New York's population has grown by about 2%," while "the doctor population has swelled by 36%." (Id. at 1.) As of2013, 102,554 physicians were licensed to practice in New York State, with 83,287 living within the state. "In only four counties out of New York State's 62 counties (less than one percent) was there a decline in the number of physicians." (Id. at 1 ;4.) • "Very few complaints originate from those who are among the most likely to observe misconduct- other physicians" and very few complaints originate from "other health care professionals and the institutions in which they worked." (Id. at 1 ;9.) 6 See, New York Public Interest Research Group et aI., Questionable Doctors, (May 2014), available at http://www.nypirg.org/health/questionabledocs/QuestionabIe _ Doctors20 14.pdf 26 .. "[P]atient deaths resulting from medical mistakes in hospitals are either the third or fourth leading cause of death in America." (Id. at 3.) "[T]he recent estimates of hospital patient injuries range nationally from a low of 21 0,000 to 400,000. Since New York State's population is roughly 6.7% of the nation's, a rough estimate of patients killed in New York hospitals ranges from a low of 14,000 to a high of26,000 each year- or 38 to 73 patients killed [from medical mistakes] each day!" (Id. at 10.) (Emphasis Supplied.) 7 Additionally, OPMC's investigations are partially dependent on information gleamed from tort lawsuits and dependent on tort lawsuits. See, Office of the NY State Comptroller, Report 2005-S-21, Office of Professional Medical Conduct Complaints and Investigations Process, (August 2007) at P5 (Noting medical malpractice insurance companies are required to report cases of potential malpractice to OPMC, and in November 2005 "OPMC began using its malpractice database as the main source of information for identifying cases involving potential malpractice and initiating an investigation.") 8 Consequently, tort lawsuits are a de facto part of New York's medical 7 Since the Supreme Court ruled against Appellant on July 10,2012, approximately 35,000 to 65,000 humans have died in New York hospitals because of medical errors. 8 Report available at http://osc.state.ny.us/audits/allaudits/093007 /05s21.pdf#search=OPMC 27 industry regulatory scheme. (This is without even factoring in tort law's purposes of compensating victims and deterring future misbehavior.) If Respondents can undermine tort law and the common law, then they will also be able to undermine OPMC's regulatory functions. As to Hammock's point that hospitals have malpractice avoidance programs, according to a 2012 study by the Department of Health and Human Services, Office of Inspector General: Hospital employees recognize and report only one out of seven errors, accidents and other events that harm Medicare patients while they are hospitalized, federal investigators say in a new report. Yet even after hospitals investigate preventable injuries and infections that have been reported, they rarely change their practices to prevent repetition of the 'adverse events,' according to the study, from Daniel R. Levinson, inspector general of the Department of Health and Human Services ... 'Despite the existence of incident reporting systems,' Mr. Levinson said, 'hospital staff did not report most events that harmed Medicare beneficiaries.' Indeed, he said, some of the most serious problems, including some that caused patients to die, were not reported ... F ederal investigators identified many unreported events by having independent doctors review patients' records ... Many hospital administrators acknowledged that their employees were under-reporting injuries and infections that occurred in the hospital. .. The inspector general found that "hospitals made few changes to policies or practices" after employees reported harm to patients. In many cases, hospital executives told federal investigators that the events did 28 not reveal any 'systemic quality problems.' Organizations that inspect and accredit hospitals generally "do not scrutinize" how hospitals keep track of medical errors and other adverse events, the study said.9 Additionally, New York has adverse incident reporting requirements pursuant to Public Health Law §280S. Yet, it is recognized that "it is difficult to ascertain the level of compliance with- or completeness of' reporting by Respondents. 10 "The New York State Health Department released an analysis of 1999 data submitted through the New York Patient Occurrence and Tracking System, the State's mandatory incident reporting system. The report concludes that hospitals ... are significantly under-reporting adverse incidents. In one category analyzed through a comparative test. .. the statewide reporting 9 See, Robert Pear, "Report Finds Most Errors at Hospitals Go Unreported," New York Times, January 6, 2012, available at http://www.nytimes.com/2012/01/06/health/study-of-medicare-patients-finds- most -hospital-errors-unreported.html (citing U.S. Department of Health and Human Services, Office of the Inspector General, Hospital Incident Reporting Systems Do Not Capture Most Patient Harm (January 2012), available at http://oig.hhs.gov/oei/reports/oei -06-09-00091. pdf 10 See, New York Patient Occurrence Reporting and Tracking Systems- NYPORTS- 200S, 2006, 2007 Report, by Richard F. Daines, M.D.- Commissioner of Health, at P9, available at http://www.health.ny.gov/facilities/hospital/nyports/annual_report/200S-2007/doc s/200S-2007 nyports_annual_report.pdf 29 compliance rate was only 16 percent." II Hammock argued that drug impaired driving arising from Emergency Department mistakes is "not generally cited" as a significant statistical factor to the crime. (Hammock Brief at 44.) If Respondents refuse to accurately report their mistakes, how can it possibly be known how often they discharge impaired individuals to drive? Hammock interposed an argument knowing full well the legitimacy of the argument's foundation cannot be confirmed. The fact that the medical industry is notorious for under-reporting adverse incidents belies their claims that this Court should allow them to in essence self- regulate and be placed above the common law or law. Actually, the evidence supports the contrary conclusion, namely disavowing the common law for an industry that conceals its mistakes is dangerous for New York. Besides the medical industry concealing mistakes, "financial incentives for hospitals to provide high-quality care are already perverse: hospitals earn more revenue from patients who suffer [unnecessary] complications than from patients who do not. This makes it more plausible that if the incentives provided by med[ical] II See, 2001 Press Release, State Health Department Study Shows that Majority o/New York Hospitals are Not Reporting Adverse Incidents, available at New York State Department of Health website at http://www.health.ny.gov/press/releases/2001/nypfinal.htm 30 mal [practice ] liability become weaker, quality may fall." 12 Because of the medical industry's long-standing inability to avoid or lessen medical mistakes, hospitals now are currently financially dependent, partially, on treating the sequalae of their unnecessary medical mistakes (and billing for same). Moreover, although the validity of the 'defensive medicine' theory is questionable, it is probably true that the amount of medical resources wasted treating the sequalae of medical mistakes is sizable. Correspondingly, if the medical industry was forced to eliminate the unnecessary medical errors that occur in one-third of all admissions, an unprecedented surplus of medical resources for New York citizens would probably result. A recent study places the national estimate of costs of unnecessary medical errors as high as $735 billion to $980 billion. 13 When considering New York has approximately 6.7% of the nation's population, New York's annual costs of unnecessary medical errors is as high as approximately $49.245 billion to $65.660 billion. (Since the medical industry conceals its 12 Bernard S. Black and Zenon Zabinski, The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform, Northwestern University Law & Economics Research Paper No. 13-09 (July 2014) at 5, available at http://ssm.com/abstract=2161362 (Citing multiple studies). J3 See, Charles Andel, et. aI., The Economics of Health Care Quality and Medical Errors, Journal of Health Care Finance, Vol 39, No.1 (Fall 2012). Article available at http://www.ctcps.org/pdfsIJHCF_FaU12_Andel_etaI.pdf 31 mistakes, the precise amount of New York medical resources wasted on treating the sequalae of avoidable mistakes is probably unknown and/or speculative to an extent- which is probably one of the reasons why the medical industry conceals errors.) According to a 2012 article published in the Journal of Health Care Finance, Preventable medical harm has been an ongoing and vexing problem. Quality and patient safety expert Dr. Lucian Leape from the Harvard School of Public Health, estimated more than 25 years ago that the problem's human toll equaled 300 jumbo jets crashing every year in the United States. That's nearly one a day. If that were the case, the US aviation industry would have been shut down until a solution was found ... In a perversion of the fee-for service system, hospitals fared better financially when patients needed follow-up care after an error occurred. A hospital was encouraged by the payment system to harm a patient just enough without killing him or her and perform some additional services, for which it received additional payments. Not much incentive to improve care or save Medicare money. Of course, no hospital's leadership consciously decided to hurt patients to make more money, but the system did not encourage and reward better and more efficient care ... A quarter of Medicare beneficiaries admitted to a hospital are victims of medical harm, according to a December 2010 report from the Office of the Inspector General. .. Newer studies from Health Affairs in April 2011 suggest that the rate of preventable harm may be up to ten times higher than 10M estimates. (Id. at 2.) ... Quality care is less expensive care. It is better, more efficient, and by definition, less wasteful. .. Obviously, quality care is not being delivered consistently throughout US hospitals ... 32 Interestingly, developing a culture of safety and quality also can improve medical liability insurance costs although that's not the primary motivator for improving care ... Whatever the measure, poor quality [of medical care] is costing payers and society a great deal. (Id. at lO- Il.) Indeed, Respondents' argument that current regulatory mechanisms are adequate and should displace tort law is feigned. Hammock accentuated that before discharge, Ms. Walsh was 'medically evaluated' by Ms. DeLuca- a licensed physician assistant ("P.A."). And Hammock argued that it was misleading to label Ms. DeLuca as a 'staff member. , (Hammock Brief at 9.) Hammock noted that physicians do not have to be physically present to supervise P.A. 'So (Id. at 11.) 14 Physician Assistants/P.A.'s require approximately two (2) years of specialized schooling- not the 4-12 years of school required of physicians. In essence, a P .A. without the assistance of a physician made the 'medical evaluation' in this case, according to Hammock. Similarly, Hammock is asserting 14 Hammock omitted in her brief that Education Law §6542(2) states that the supervising physician should supervise the P .A. in a manner where the "supervision shall be continuous ... " Also, Education Law § 6542(3) and 10 NYCRR §94.2 place restrictions on the number ofP.A. 's that a physician is allowed to supervise. Since no discovery has yet occurred in this case, it is unknown if these provisions were violated. 33 that tort liability on the medical industry will have no positive deterrent effect regarding the medical industry's utilization and/or supervision of P.A.'s. Hammock wants this Court to find that Respondents are immune from liability for failing to use due care in staffing, operating, and coordinating E.R.' s. As to the Dram Shop Act, Hammock quoted Matavage v. Sadler, 77 AD2d 39 (2d Dept 1980) where the Court stated that the Dram Shop Act "creates an expansive cause of action completely unknown at common law." (Hammock Brief at 57.) What Hammock omitted in the brief is that Matavage was quoting that wording from an 1878 case that was discussing 1878 common law. Society, and the common law, has evolved since 1878. Hammock noted that drug impaired driving laws 'differ dramatically' from State to State. (Hammock Brief at 45.) What Hammock meant is that drug impaired driving 'criminal' laws and 'criminal' procedure laws might differ from state to state. This is a tort case. Hammock argued it is "fair to assume that adults are generally aware of the effect that narcotic painkillers have on driving ability." (Hammock Brief at 50.) Compare, New York State Office of Alcoholism and Substance Abuse Services, Drugged Driving, at P7, (January 2011) ("It is important for physicians to advise their patients of the potentially impairing effects ofbenzodiazepines and opioids, 34 particularly in relation to drowsiness and sedation, and the implications of these effects on driving skills such as reaction time, attention and vigilance.,,)15 Hammock's assumption that every adult knows everything about every medication is unrealistic, and pretends warnings lack utility. I know of no person who is not a doctor who could possibly understand the effects of IV Ativan and Dilaudid unless explained/ warned by the physician. In this case, there is no evidence that Ms. Walsh knew (i) what medications were administered upon her, (ii) nor knew the dosage of the medications administered upon her, (iii) and Ms. Walsh was cognitively impaired upon the administration of the medications until the time of the accident. Additionally, since Respondents did not warn Ms. Walsh to avoiding driving, she might have been mislead into making the assumption in her impaired state that the physicians believed she could drive. In actuality, Hammock is not just arguing that Respondents have no legal duty to Appellant, but instead, Hammock is brazenly arguing that physicians should not have any legal obligations to warn about driving related effects of medications to any adult patients. Hammock is requesting that the Court hold that the reasonably prudent person/patient standard is redefined to include the legal presumption that all adult patients always know that any dosage of any type of 15 Available at http://www.oasas.ny.gov/admed/fyi/drugdriving.cfm 35 medication can effect driving abilities, thereby relieving the medical industry of any obligation to warn. Basically, Hammock's argument pretends that physicians are not 'learned intermediaries,' and pretends that many patients-if not most- cannot recite FDA warning labels upon command, especially if they are feeling excruciating pain and are cognitively impaired by the very narcotics they were treated with during the relevant time period. In other words, Hammock wants this Court to hold that the patient is the 'learned intermediary' about warnings not to drive. The newest data indicates that 7.3% of drivers drive with prescription or over-the-counter medications that could affect driving ability in their system. 16 Hammock is asserting it is poor policy to require Respondents to warn the 7.3% of drivers driving possibly impaired on legal medications. In New York, Physician Assistants are allowed to write prescriptions. See, 10 NYCRR § 94.2(e). As Hammock has stressed, the P.A.'s can write the prescriptions without a supervising physician being physically present. 16 See, Department of Transportation's National Highway Traffic Safety Administration, 2014 Roadside Survey of Alcohol and Drug Use by Drivers, link to report available at http://www .nhtsa. gov I About+ NHTSA/Press+ Releases/2 015 Inhtsa-reI eases-2-impa ired-driving-studies-02-20 15 36 Hammock's argument that patients are the learned intermediary would relieve P .A.' s of the responsibility of warning- and indirectly relieve physicians of the responsibility to supervise P.A.'s. Hammock requests this Court lower the supervision standards for the medical industry in an era of prescription drug abuse and increasing drug impaired driving. Hammock argued that if the Court finds that Ms. Walsh's decision to drive was 'displaced' by Respondents pursuant to §324A(b), then the Court would be holding that Respondents 'obliterated the personhood' of Ms. Walsh. (Hammock Brief at 38.) If Hammock's logic is valid, then this Court has already held over a hundred years ago that a patient's personhood can be obliterated by reliance on Respondents. See, Carpenter v. Blake, 75 NY 12,18 (NY 1878). Hidden inside of Hammock's 'straw man' argument is the real premise, which is that patients should not rely on physicians' expertise and special knowledge, and physicians should not be liable when injuries to a third-party are caused by Respondents' breach of their patient's trust, and failure to use care when using their special knowledge. In effect, Hammock's argument implies that patients have the same level of special knowledge as physicians, and therefore the patients can make informed decisions no matter what physicians do, or not do. The argument is akin to assuming a lay person has the same level of knowledge 37 about contracts as Professor Corbin, and treating the two as equals. Hammock's argument basically implies that the tort of misrepresentation should not exist. Yet, in New York, a duty exists to disclose information if an individual is in a fiduciary role and the non-disclosure of the information would lead to harm. See generally, Lauer v. City a/New York, 95 NY2d 95, 109 (NY 2000)(Bellacosa J.)(Dissenting), citing, Eiseman v. State a/New York, 70 NY2d 175,187; Heardv. City a/New York, 82 NY2d 66,73 (1993); McKinney v. Bellevue Hasp., 183 AD2d 563, 565 (1st Dept 1992); Caracci v. State, 203 AD2d 842 (3d Dept 1994). Hammock's argument denies the existence of the fiduciary relationship, and implies that New York State has no interest in ensuring that professionals use specialized knowledge with care. Indeed, Hammock' arguments are relentless in trying to convince this Court to lower the competency standards of the medical industry. Hammock argued that the control doctrine should not apply when a patient voluntarily submitted to Respondents' authority "because the existence of that willingness [of the patient] is clearly beyond the doctor's control." (Hammock Brief at 22.) The argument losses sight of the end of the forest through the trees. It is true that a patient's submissiveness is within the patient's control, yet if the 38 patient submits, then the physician would possess 'active control.' How the 'actual control' comes about- whether it arises through forcible physical means or arises through the dominance that Respondents possess by their fiduciary status- is irrelevant to the existence of the' actual control.' What Hammock is truly arguing is that this Court should overturn the 'actual control' standard, and replace it with a new 'forcible control' standard, and/or make the new standard ability and authority to 'forcibly control.' Hammock offered no explanation as to why the 'actual control' standard is imprudent or ill-conceived. Hammock argued that the control doctrine should not apply to situations where the patient voluntarily submitted to Respondents' authority because: "Proving or disproving this [type of control] 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." (Hammock Brief at 24.) In this case, (i) 'actual control' commenced, and then, was prematurely terminated; and (ii) the patient was physically present during the actual control. 39 When these two variables exist, it is simple to figure out if the patient voluntarily submitted to Respondents' authority. All a Justice would need to do is look at the chart and ascertain if an 'Against Medical Advice' (A.M.A.) form exists; ascertain if a discharge summary is signed; and/or ascertain if the patient was provided discharge instructions. It does not take a psychologist to ascertain if an 'A.M.A' form exists, or a discharge summary is signed. Hammock's argument that a psychologist would be necessary to determine if actual control exists - to some extent- confuses the issue of 'why' actual control would exist when a patient voluntarily submitted to Respondents' authority with the issue of 'how' to determine if actual control existed. All that is necessary to determine if 'actual control' exists- in this case- is to evaluate the patient's actions. Admittedly, if 'actual control' did not commence, in contrast to herein, and the patient was not physically present, then Hammock's argument has merit. Yet, the doctrine does not have to be that it always applies, or it never applies- as Hammock's argument insinuates. In fact, rejecting Respondents' 'all or none' mentality is in tune with incremental jurisprudence. South Nassau argued that Cohen is not distinguishable from this case. (South Nassau Brief at 13.) Among many ways Cohen is distinguishable is the 40 policy interest supporting a duty in Cohen was the State's interest in preventing the occurrence of In Vitro Fertilization procedures, which is not much of a State interest. In their totality, Respondents' briefs viewed the tort analysis through a contractual prism/framework, and not a tort prism/framework. See, Hammock Brief at 40 ("[I]t cannot be said that the very end and aim of [the] medical treatment [contract] is to provide safe roadways ... "); Contrast, Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1,6 (NY 2013); New York Univ. v. Cont'l Ins. Co., 87 NY2d 308, 316 (NY 1995) ("A tort obligation is a duty imposed by law to avoid causing injury to others. It is apart from and independent of promises made [in the contract]"); Rosenbaum v. Branster Realty Corp., 276 AD 167, 168 (1st Dept 1949)("It is the breach of the [common law] duty [to use reasonable care] imposed by law and not of the contract obligation which constitutes the tort.") Respondents' contractual framework condones Respondents ignoring obvious and known societal risks. Respondents' contractual framework cheapens the State's interest in regulating or deterring obvious and known societal risks. "The traditional concerns of contract law ... are the protection of the parties' freedom of contract and the fulfillment of reasonable economic expectations. Tort law, on the other hand, is concerned with deterring carelessness, preventing 41 accidents and distributing risk in a socially useful way." Bellevue South Assoc. v. HRH Constr. Corp., 78 NY2d 282,304 (NY 1991)(Titone J.)(Dissenting In Part.) Because Respondents, and their insurers, are defiant in their belief that tort common law doctrines do not apply to them, they believe an application of common law principles in this case creates "a new cause of action" "radically expand[ing] liability." (Hammock Brief at 13.) What Hammock labeled a 'new cause of action' [to them] is really this Court applying universal tort principles and applying common law causes of action well-rooted in this State's jurisprudence- that apply to everyone else in society. In other words, Appellant is not requesting common law doctrines that were created solely for the construction field apply to Respondents. Instead, Appellant is requesting that common law principles and doctrines that were created to apply to everyone apply to Respondents. See, Hammock Brief at 33 ("Appellant's argument, that physicians should be similarly situated to persons in other occupation or professions, misses the point. .. "); Contrast, Bing v. Thunig, 2 NY2d 656, 666-667 (NY 1957)("Hospitals should, in short, shoulder the responsibilities borne by everyone else ... The rule of nonliability is out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing.") 42 In New York, no legislative act has ever extinguished victims' meritorious claims because the tortfeasor was Respondents. Similarly, the Legislature has never indirectly attempted to extinguish meritorious claims because the tortfeasor was Respondents. See, Bleiler v. Bodnar, 65 NY2d 65, 69 (NY 1985)(Noting that the shortening of the medical malpractice statute of limitations was never intended to reduce the bringing of meritorious claims.) Actually, the statutes of New York and actions of the Legislature make it clear that it is the policy of this State that meritorious claims will not be extinguished merely because the tortfeasor is the medical industry. Respondents are steadfast in refusing to acknowledge this reality, making most of their policy arguments disjointed from an objective foundation. By requesting that this Court not create a 'new cause of action' as to them, Respondents are truly requesting that this Court nullify common law causes of action that exist. Correspondingly, Respondents hope this Court will do what the Legislature refuses to do, namely extinguish meritorious causes of action. This conclusion is inescapable. If §324A principles- and claims- apply to the rest of society, but not to Respondents, then the claims have been extinguished under the guise that a 'new cause of action' will not be recognized. Yet, since Tenuta and McNulty's holdings were partially based on this 43 Court's reliance on the Restatement of Torts- which applies to everyone- it seems it is settled law that Respondents are not automatically exempt from tort principles and law, and the germane question is the interpretation of the tort principles. Hammock argued that Appellant offered no concrete support for the assertion that a duty (or tort law) deters misbehavior. (Hammock's Brief at 46.) Contrast, Bernard S. Black and Zenon Zabinski, The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform, Northwestern University Law & Economics Research Paper No. 13-09 (July 2014) at 2 ("Our study is the first, for med mal and indeed for personal injury liability generally, to find strong evidence that a reduction in liability leads to a reduction in safety. The broad rise in adverse events is consistent with 'general deterrence,' in which lower liability risk leads hospitals to invest less in safety and physicians to be less careful in general.") 17 Hammock's 'concrete support' argument has an internal flaw, namely Appellant is merely requesting the common law be applied to Respondents- and it is Respondents who are requesting that the common law be nullified. Thus, Appellant should not have the burden of proving why the common law should not be disavowed. Instead, that burden should be on Respondents, since they are the ones who want the common law disavowed. 17 Article available at http://ssrn.com/abstract=2161362 44 As to the issue of 'limitless liability,' the New York medical industry has had a duty to the 'general public' - to use Respondents' label- by the application of the 'control' doctrine for over forty years, and yet, the medical industry has not been crushed by such tort liability. While Respondents' briefs are over-saturated with the phraseology of' duty to the general public,' "Applicable here is the well-established rule that every person owes every other person a duty imposed by law to be careful not to hurt him." Taylor v. Smith, 892 So.2d 887, 892-893 (Sup Ct Ala 2004). See, Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 (NY2013) (Finding the third-party duty is "to avoid harm to others"). The third-party principles enunciated in Restatement 2d §324A are utilized with various industries in New York. To Appellant's knowledge, no industry has been crushed by such tort liability. So if the medical industry was the first industry in New York's history crushed by such third-party liability, it would be unusual. Multiple sister states have found that the medical industry is accountable to third-party victims in situations like herein. To Appellant's knowledge, no medical industry of a sister state has been crushed by such tort liability. So if New York's medical industry is the first medical industry in the United State's history crushed by such third-party liability, it would be unusual. Despite assertions by the medical industry and insurance industry that 45 lawsuits have a negative societal impact, the assertions are mostly exaggeration and feigned. For example, in 1986, the Ad Hoc Insurance Committee of the National Association of Attorney Generals analyzed the correlation between tort lawsuits and insurance rates and found: The facts do not bear out the allegations of an 'explosion' in litigation or in claim size, nor do they bear out the allegations of a financial disaster suffered by property/casualty insurers today. They finally do not support any correlation between the current crisis in availability and affordability of insurance and such a litigation 'explosion.' Instead, the available data indicate that the causes of, and therefore solutions to, the current crisis lie with the insurance industry itself.,,18 "For example ... the Center for Justice & Democracy published a 1999 study called Premium Deceit- the Failure of 'Tort Reform J to Cut Insurance Prices. The study was the first-ever look at 14 years of property/casualty insurance price trends nationwide. The study found that the enactment of laws that restrict injured victims' right to go to court had no impact on rates." (Id. at 19.) Mr. Robert Hunter is an actuary who is a former Commissioner of Insurance 18 See, J. Robert Hunter & Joanne Doroshow, Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America, at Page 13 (December 15,2011), quoting, the 1986 report of Ad Hoc Insurance Committee of the National Association of Attorney Generals, available at http://www.insurance-reform.org/studies/Repeat_ OffendersFinal.pdf 46 for the State of Texas, and a former Federal Insurance Administrator. He argues that the flux in insurance premiums throughout the years, predominately, was caused by cyclical 'hard' and 'soft' insurance markets- and not tort lawsuits. (Id.) In 2007, Mr. Hunter conducted a meta-analysis of documentation provided by New York's malpractice insurance companies. His synopsis evidenced that: "The above chart of direct written premiums (what the doctors actually pay to the insurers ... ) and direct paid loses (what the injured victims actually get from the insurers ... ) shows that on a per doctor basis, medical malpractice paid claims costs, in real terms, has slightly declined from $15,778 in 1988 to $12,145 today. These costs have been flat to down since the mid 1980's, the previous 'crisis' in medical malpractice insurance ... Premiums per doctor spiked, in real terms, in 1988, at $35,566. These average premium charges dropped to a low of$13,553 per doctor in 200l. Today the figure is $18,078 ... In 1997, the state reported that insurance was readily available and the market extremely competitive. The rates had risen by only 6% since 1990 to 1997. Certainly there was no crisis a decade ago; indeed the state was appropriating what it saw as excessive surplus in the market for other uses ... " 19 Cj The Status of the Primary and Excess Medical Malpractice Market and the Future Needfor the Medical Malpractice Insurance Association, A Report to the 19 See, J. Robert Hunter, The Current New York State Medical Malpractice Situation (December 17,2007), link to report available at New York Law School's Center for Justice Democracy website at http://centerjd.org/content/study-report-j-robert-hunter-new-york-state-medical-ma I practice-insurance-si tutati on 47 Governor and the Legislature by the New York Superintendent of Insurance, (December 1, 1997) at P23("The mass exodus of insurers from the medical malpractice insurance market [that occurred in the 1970's] has not repeated itself and, to the contrary, there has been an increase in the number of insurers that were writing in this market."fo "In 2009, NYS hospitals spent $1.6 billion to cover medical malpractice expenses. This represents an estimated 3% of their revenue. In addition, it has been estimated that 30-50% of the premium dollar is directed toward obstetrical cases ($500-$800 million)." 21 Although 50% of malpractice expenses are attributable to obstetrical cases, even still, the Legislature did not extinguish meritorious causes of actions. Consequently, approximately 1.5% of New York's hospitals' revenue is allotted to malpractice expenses for non-obstetrical cases, while at the same time, approximately 33% of patients have unnecessary medical mistakes committed upon them. As previously stated, the annual cost/economic harm of medical mistakes to New York is approximately $49.245 billion to 20 Available at http://www.dfs.ny.gov/insurance/acrobat/medmaI2.pdf 21 Medicaid Redesign Team, Proposal To Redesign Medicaid: Proposal 131, Page 136 (2011), Available at http://www.health.ny.gov/health _ care/medicaid/redesign/docs/descriptions _ of_rec ommendations. pdf 48 $65.660 billion. Non-obstetrical malpractice expenses of$800 million is 1.62% of $49.245 billion, and 1.22% of $65.660 billion. In other words, the malpractice costs to Respondents from non-obstetrical litigations is a cup of coffee when compared to New York's annual costs arising from unnecessary medical mistakes. The New York Legislature addressed the issues regarding obstetrical malpractice. Maybe now it is time for this Court to reaffirm to the medical industry that concealing mistakes, hiding human harm, and not improving, is not the policy of New York. That it is not good enough, and more is expected. In B.R. ex ref. Jeffs v. W, 2012 UT 11,275 P3d 228 ,2012 WL621341 (Utah 2012), the Utah Supreme Court found that a healthcare provider owed a duty of care to third parties not to negligently prescribe medications. In B.R. ex reI. Jeffs, the defendants "and their amici" requested the court create a special rule-primarily on policy grounds-that healthcare providers owe no duty to anyone other than a patient. In response to the medical industry's request, honorable Justice Thomas R. Lee- speaking for an unanimous court- held: Defendants' concerns about the impacts of a duty on malpractice insurance and healthcare costs falter on similar grounds. The supposed effects on insurance premiums and patient costs are speculative, as neither defendants nor their amici have presented any evidence showing that insurance costs are lower in states that do not impose this type of duty on healthcare providers. 49 And in any event, the alternative suggested by defendants is to impose these costs on injured parties and permit negligent physicians to remain unaccountable. It seems more reasonable to require physicians and their insurers to account for the consequences of physicians' careless acts than to foist that cost solely on the injured. B.R. ex rel. Jeffs 275 P3d 228 at 237-38. "Ever since MacPherson v. Buick Motor Co. was decided more than a half century ago, there has been an expanding recognition that the argument concerning unlimited liability is of no merit, yet the aberrations persist." Tobin v. Grossman, 24 NY2d 609,620 (1969)(Keating, J.)(Dissenting). Cf Marc A. Rodwin and Justin Silverman, Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall, Suffolk University Law School Research Paper No. 14-27, at P64-67 (August 20,2014) (Noting that a "real medical malpractice crisis serves no one's interest, yet the perception of a crisis advances the agenda of certain actors", including the A.M.A. which utilizes universal political theme(s) as a tool to raise its membership, which is currently less than 33% of all physicians while in the 1950's A.M.A.'s membership was 60% of all physicians- and lower membership means less revenue for A.M.A.'s survival.) 22 22 Link to paper available at http://papers.ssrn.com/so13/papers.cfm ?abstract_id=24840 15 50 Professor Rodwin's paper discussed a meta-analysis of all available data, including all A.M.A. data, and analyzed the issue of insurance premiums in relation to overall revenue and costs of the medical industry. His analysis evidenced that the argument that insurance premiums significantly effect medical care, or revenue, is basically overstated out of proportion to the practical reality. CONCLUSION A holding that Respondents are accountable for failing to warn patients and accountable for failing to utilize appropriate discharge protocols has societal utility. The counterargument by Respondents, and their insurers, that the State of New York has no interest- in this context- in ensuring they perform their functions competently is disingenuous. The Court should issue a holding that once the Respondents treated a patient with narcotic pain killers and muscle relaxers, and they altered the patient's ability to operate a car, they had a duty to Appellant, in some fashion, not to ignore an obvious and known risk of harm. Based on the totality of all factors, the order of the Appellate Division should be reversed. 51 Dated: Garden City, New York February 10,2015 Respectfully submitted, DELL & DEAN, PLLC Attorneys for Plaintiff-Appellant 1325 Franklin Avenue, Suite 100 GardenCity:;A, MEMORi\:NtiA:PS~c&fta~fie~t;; D~ceIhkr~ 1988"': 's17 · t . .;.: .. ~: .. ::'. ; ... :; ,::~ .. ".,,' '. . .... ~~.' .'.{ .... ;': .. ' . '.'. .':~ .,,', ", · <::~y24·:Jl~l;:ffoh'h$.bti'j' J#miiicd iIdsp:>62)~ry'2d523; K~hheqyp , . '~Y~!f.#.~pry;:.~;~·: .. 5<8,.W?.a~~~;·: .. ".' .. ' .. '. :' '... " .. '; , ." " "":<·f~:'tl1.e ':'d.,e'fend~il~.:·.h,~Y~ aptiy·X,i.o.te~, ·tlie .:c'all:~~s jjf ~ction .:'~~~~J;te;d::#l: ;tli~.pliiintuts~.'·.Conii>lailit· fiJ.. Witlliil' the 'parl\iheters . ~.6( :the .latter ca~egor,y:"of .mdireCt :emotf()n;~1. harm.': Notwith- .'.~~iih~(w,if. ·*e. 'pl~~tprs': a~t~!lli>ts . to differentiate· the)n~tant :·:.f~CW·fr~,m, ·.tp.~t' ~a:tegory::~f".c~es,'·niY'· r~View of tlj.~:):,¢cord ... s'fipp'qrt$ 't~e':: :conclu"sioIi that .. t4e . plaintiffs' .~re'. s.eekirig" to :"(e:CQWi-': s~ ~ ,o?tp~tie~~ ~lpJe' und~r :.W~;~~@*,~€~ ·.}ifm~~Q:a~?#.~;.~.-; -:: ,< ·:;';i::·').'.;: :.:. ; , ... ~ .'.. " ... ,:'. : .. '. "('~.,):::,"';',:(:,,;::: (.: ;·j~.~j)h~~ipi~~ ":?~d: a':)lei\lth'-relat~(tf~c$:tyo:we' a :(~\t ,'< ~r~~);e ,·;,~!~~t'~~~t:~~~~~t.~(!i~~~1~~~:~~~t~1\~~; .,;~~~ ., :' ;tli:~i~patj'eht; ··!iow.eyer, . 'tIle physician' iJ:t' healtli-rt3hiwa"f~clilty '. . ';-does~::uot' urlderlake'a":ahty' to. the "public: a('targe; ··dtW'hidfthe ':~pl~i*tlff'iFa~cetle~tnvM;1fi;hi~InP~f '(s'~e; Piihtf ii·pMbftNA,i1McJt' • . " ~'~8' 145.APPELLATE DIVISION REPORTS •.. 2d,SERIES .. . ;'.' ~,f,qQl!:'!:ty of JVes,tchester" 72 NY2d:1;, 9, r¢q,rgde.,n:ied. 7:2,~2d 953; Eu;emdn v State of New York, ·70.NY~d 175, .18~)';;i:..t:lie . $.~tll~ r~le, of law'is ~ppUcable. to the county, w~ch opei'ate~ t~~,;inethiidOJi¢ clinic at issue::m, .. this c~e':(see, 'Oft'r#~('v :~"'ong, !s.:"CoU. Hosp.;.111 AP2d 894): There is .~o duty on the ,pi(ft,:,~f ,the oper.aj;O:r of ~ Pl~thadone ~linic, to ,co,titro!""', the.:'.traVEil "'~9t~Yjtie~ of a' 'methadone patieIit ,givipg,.ris~,.t~ li~l?~i~y' for .'·~(:~14eJ?ts to. a ·third party such fi!;'" plamtitf~ 4.ecedent.:· Where , ,*ei;e .is no duty, thet~ can ,be 'rio 'btea'¢h ~n.d· without a b~e*bh. 'th,~re c~ ,be no l,iability to the p~a4l:Wf. A.ccor~gly" s~ tn'~ judgm~nt djsIilissing. the: ' compl~,mt '." af?', 'against t1}e cbuhtY"was':properly granted: Tho~p~on.~ iJ; J:~.;;.1~ubi11.:·Sli?tt . arid Balletta, JJ., cOJ;lcur. [See" 135 ,Mise 2d ~46.]" , . ~. . '" . - ." .- -',;. . '1,i J ..... :: .. . ':"':: ; ~. ,.,. . '.:~, ... " '. '. .,.... . ·,~if'f;·'~;;:;· ;):t~~,Qt!~~~~"'~.;~AJrN~", ,.;:., 147 . . C;:lte as 536 N.Y.S.2d 147 (A.D. Z"Depl. '1988) ri?d,q~~*Y;':f?!~{~~~ip,.Qf:,t6~; pr.~I)(~mes~d~ h(!;¢, :b.een,.seJ;Yeq, ,is" in: . 'my . opiniop; .·an s~i:ib.~4.,~by~:e~:,::: ";:';":":".: .. ,:' a~~s'~ ort~~ Co~rt'~ di;~r~ti~~,(se,e,;C:P.LR By~rder dated April 15, 1985;·the·CiJurt 5Ql~[aX :p005; ·4,:Silberite~n 1lproduc: granted the defendants;· motion for a de- tfon .. Fashi.o'n43, Ltd,; 137 4·D~~(!: ?0p • . ~25. faiiit: jlidgm~pi',;With"r€ispe'2tl;to'their coun- N·~ .S.?d: ?J,1 i '. §tolpie~.y~ .Wie71.er, .log .1\,1;>:. tetclairiisiunless the plaintiff:were tOs~rte' 2d 93,1; 474 ,N.y,~.2d~,~20).,M· the v~ry a reply «(the amended. cotmterclaims on;or least, I believe this Court shoUld, iri.the befofe:April 221:1985;'.- The -plaintiff eiaiins exercise of its own discretion, j~ose. a ·l!ls~. that a 'reply :to: the amended cotmrercIairris drastic sanction, a~d. allow th~p~8:~~,ti!f:s was serted:on'A'pril.19, '1985. Neverthe-. technical def~ult ui"pleading to'be 'operled les$,' in an 'order and·ju(igment da,ted May ~. l?~der t~.·,p~rmit ·t~e. resohi~o~, 011 the 3, 1985, the ·.court, g{4anted"adefault judg- ~ents, " of" 1vnat' appears, )iased "on the' men:t ·in :favor. or" ,the ··defendants.· This present record,' to lle a' very: ~dmp'li}:aWd Conn; latetdismif,jsed an .appeal from . that ~~,e; 1).. moneta!-'Y sanction' 'wout~','ih "~y order';and' judgmerit'''WithOitt :prejudiee' to view, be a more condign puiiishment .for an application it SpeCial Term for· leave to the plaintiff's relatively':-inconsequ~ntiar vacate the' default", '. , : procequral defalJJt. . 'A rHotion' to"va~afu :·the "6rdei 'and judg- '. z:rient date~ May.3;·lSj85'~as made, and th~ . issues raised' therein were referr¢o. to Ii referee::' The' referee .foimd,· After" a 'hear- ing, that Cthe·.reply 'to the' aroellded counter- Clauns' was in·fact mailed on April 26, 1985 when" the imvelQpe cOhtaining it was post- mlfrked; rather than on Apri119, 1985. The Court 'adopted .-th-e report of tne' r~fel'ee' and, after :further submissions an4 testimo- ny, 'deniM tlie . motion"'tQ vacate' the' order ali~ Jua~elit of M~y 3; i985. TliiliipPeal . < foifowe.d:·:' ". c,,:' ,-~ . ..... .I: • • . 145 A.D.2d 617 Amadeo: RFJBOLLAL: etc.;. A.pp~Uant, .' ." '. . . . v. Harry B. PAYNE, et ar.. Defendants, The' CoUnty of SuffoUr,' Rcl!pondent".' . ,', :. ''':'.' . ~. ~'., .: .: .. Sup~eme . Court, AppeUat.e. ,I;?i'1siCln, . : Second .D.epartment. ," . , ..... :{b~1i~~e.:' thai it w~an ··ab~s~. (Jf. dIs<:l~~ '... Wrongfw" deiitfi action ~as: :b:ro~glit tion, J~ni(iience e~pi!' as a.\ma~r of law. againSt county following autom'dbile acci~ for th.e Supre~e CoUrt to reflise" to -\tacate derit involyihg- motorist wh6hl!-d.b'eeii:' give~' the default judgment in favor of the defen- Jiiethadope by c-ountY .. The S4pie1l1~ Court dants on their ... countercIalms. The relief at mal T.~r~; Suf~oIJ{' CoUnty~" lS5.M:iS~:2d granted by the '-CoUrl: in itS judgment and 846, 5is·N:Y.S'.2d· 831, T'iureIiba)im; t;;';di1i·· order dated May 8, 1985 'is drastic. The miSsed claim against- county. iin'd'plll.mti{f plaintiff is directed in that judgment, to appea:led. The ~upt~ine';Couit;!.~~p~lllite ~onvey'a·50% interest in each of four sepa- Division, held that county, which;: operated' rate income-producipg prop!'lrties. Wheth- me~ha~on~ eli.nic Ilt. whi~ '~,?~rJ~tiha~J1ie- . er the de~~~gil-n~ ,w?,~14 ,~!t.J~st l.>~ .. entitled ~~iy.e~ .. !io~a&,~ ,j:lf ine.thaqpl\~J~~t~!i~r.J;il~I,.~,~'?tlt.i.tj~ . wer.e.,to I;>.e proPEl~lx:ad9ress!'ld,.is not at'all ii.t.victim]-Aeath, ~~e~ Qq. 4~tr;.J;9,-~#JIl:~t ·c~e.~r.;"j;in(:i '/th~ fact/;l~F:aria.'-,]egal ·issues warp mom,rist th~~ he shoW5\-·.no~(8P'~~~.~, :p;resen~d iJjy;tl~e.:;pl~Uing~;:,a~: t~~y al;e, a~to~o?iIe after mgAA~~;"nt~S~Ne;d}p~; . e~z:!;:~ntlr ~fram~~:, ~E} .. ·cBlPPI<;x::.:.; h9' ,g):ant t~~,. <:9unty ~O\lJ!l ~9t h.e h~bl~P~r.~,~~{~.o( sucl~, relief wjt.l:wut,ii);ri;>:l Qf.Jhe merits, as YlqtJm. , . "," ;p:uni~hment iqr what was.~ c9mpletely non- . ", A,f£jrroed. .." ,", " prejudicial delafiiithiserl'ibe of a reply to . '.' : !.' :.:' the defendants'," I\me~d.ed counterclairn&, i. Au~oinobil~s .. ~191(lf·.~. ,;' '. r.-,; ,*hH;h;Jm~~~'~~r~~~~Y~;r~~IW?,a~~v,e, 9~ the ;'" .C<'>V!1.W},,· ~~~yh . opera,te4;,· ~nthMo?E(' I? 9rigin~1c,0~nterclaims,' to \\:~ic4,,~ ~eplr clini~' at. whi~h mo~orist, ,had r~c/~hre,d}ii~- age :'01 methadone justpdorto colliSion #lfH':~ctim'sautonibbiii'l, resulting in 'Vic- tiiri's'death, owed rio duty to vicfun to \V'aiil rii$iliii~t that he shouldnot:operate',aiitoc mbb'il{i aJter ingesting methadone: and thus; cohntJcould hot be liable for death of :vie"tfiilf',:, " .J i: ~;>~asp~tals '~;'r i ' '. "'PiaisICians ~nd Surgeon~¢;>14(l) "'::!:;P~Y;I~i;i,n'~na1i,ealth:reiiited "Ia~~ity o\V~ "mplaint as ,againSt: it:' ", .. ' " " •••• , I •. ' • - •• • ,:OR~~ED tbat the,'order is aff.irmed, Wl~ .<;08ts. " ,tlJ: 'The plaintrff's'dec~dent was ,killed ,in:a~.auto'iriobii~'accident when the car"she w~s ,driVing w:ts strock by one dnyEni'-. by tiie"d~(eJldant 'Payne and 'owned",by' 'the def~rid~nt' 'Oxford~, Payne was. "'driving h~fui.'alterhaVint'rticeived a dosage 'of riieth'ii.dori~ at a' CountY-operated; . out-pa- tient treatment center. The plaintiff ;:3.8-' serts that the county had a duty U) warn Payne that he Sh9Uld no~ ope~ate an auto- mobile after ingestIDgmethadone~n(tthat the:~Qii-iity is liable to '.third petso,il~"'\vho arEdnjtlred' by outrpatientS;'silch as iiy: an out~patient while under tlie'iliflilehc~ ~Of methadone.., .' ',; .' " . :". ". '. " . .' i. - .. - ~ , [21 f\..physicil!-pand ~ hea,~thcr~lated':fa dUty: owe ,':':' . ':' \. : ,' .. : ': : '. ~ . "; ~. :' ~'. : ;. :;! ".:. " ~.':' ., : :.- :~'". -. .' ~ .,.' .; :