Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.

Brief

N.Y.October 15, 2015

To be Argued by: ROBERT G. VIZZA (Time Requested: 30 Minutes) Court of Appeals of the State of New York O EDWIN DAVIS and DIANNA DAVIS, Plaintiffs-Appellants, - against - SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, and ISLAND MEDICAL PHYSICIANS, P.C., Defendants-Respondents. (See inside cover for continuation of Caption) BRIEF FOR DEFENDANT-RESPONDENT SOUTH NASSAU COMMUNITIES HOSPITAL BARTLETT, MCDONOUGH & MONAGHAN, LLP Attorneys for Defendant-Respondent South Nassau Communities Hospital 170 Old Country Road, 4th Floor Mineola, New York 11501 (516) 877-2900 Dated: January 29, 2015 Appellate Division, Second Department, Docket Nos.: 2012-08057 & 2012-10997 Nassau County Clerk’s Index Nos.: 01834/2011, 023966/2009 & 08405/2009 APPELLATE INNOVATIONS (914) 948-2240 Court of Appeals No. APL-2014-00245 8686 Printed on Recycled Paper ____________________________ LORRAINE WALSH-ROMAN, Plaintiff, -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. ____________________________ EDWIN DAVIS, Plaintiff, -against- LORRAINE A. WALSH, Defendant. ____________________________ CORPORATE DISCLOSURE STATEMENT Defendant-Respondent SOUTH NASSAU COMMUNITIES HOSPITAL, by it’s attorneys, BARTLETT, McDONOUGH & MONAGHAN LLP., as and for a disclosure statement in compliance with the Rules of Practice of the Court of Appeals, 22 NYCRR § 500.1(f), avers the following upon information and belief: Defendant-Respondent SOUTH NASSAU COMMUNITIES HOSPITAL (the “Hospital”) is a not-for profit hospital corporation organized and existing under the laws of the State of New York with offices and facilities located at One Healthy Way, Oceanside, New York, 11572. Winthrop-South Nassau University Health System, Inc. (the “System”) is the sole member of the Hospital under the New York Not-for-Profit Corporation Law. Winthrop-University Hospital Association (“Winthrop”) is another community hospital controlled by the System. SOUTH NASSAU COMMINITIES HOSPITAL is the sole corporate member of Oceanside Counseling Center, Inc, S N Services Corporation (which in turn is the parent of an inactive corporation known as South Nassau Healthcare Services, Inc.), and 203 Merrick Road Holding Corp. Shares of the following nine affiliated professional corporations are held by physicians who are employees of either the Hospital or the P.C.: South Nassau Family Medicine, P.C., South Nassau Women’s Primary Medical Care, P.C., South Nassau Neonatal Services, P.C., South Nassau Physician Practice, P.C., South Nassau Oncology, P.C., South Nassau Cardiovascular Practice, P.C., South Nassau Medical Group, P.C., South Nassau Obstetrics & Gynecology, P.C., and SN Radiological Practice, P.C. The Hospital is also affiliated with South Nassau Physician Hospital Organization, Inc. Dated: Mineola, New York January 29, 2015 Yours etc., BARTLETT, McDONOUGH & MONAGHAN, LLP By: /S/ ROBERT G. VIZZA ROBERT G. VIZZA Attorneys for Defendant-Respondent SOUTH NASSAU COMMUNITIES HOSPITAL Office & P.O. Address 170 Old Country Road, 4th Floor Mineola, New York 11501 Tel.: (516) 877-2900 Fax: (516) 877-0732 STATUS OF RELATED LITIGATION Respondent SOUTH NASSAU COMMUNITIES HOSPITAL provides the following statement as to the status of any related litigation as of the date this brief is completed, in compliance with 22 NYCRR § 500.13(a). There are presently three related actions, numbered by the order of their commencement and described in footnote “1” of the Supreme Court’s order (R4). Action no. “1” is pending in Supreme Court, Nassau County under index no. 8405/2009 entitled Edwin Davis v. Lorraine A. Walsh. Lorraine Walsh aka Walsh- Roman, as a defendant in action no. 1, recently served a third-party complaint seeking contribution dated August 12, 2014 against REGINA E. HAMMOCK, M.D., CHRISTINE DELUCA, P.A., ISLAND MEDICAL PHYSICIANS, P.C., and SOUTH NASSAU COMMUNITIES HOSPITAL. Action no. “2” is pending under index no. 23966/09, entitled Lorraine Walsh-Roman v. Regina E. Hammock, M.D., Robert Dean, M.D., Christine DeLuca, PA, South Nassau Communities Hospital, and Island Medical Physicians, P.C.. Plaintiff in action no. 2 discontinued her claims as against defendant DEAN by stipulation of discontinuance filed on July 26, 2012. Actions 1 and 2 were joined for trial by order of the Hon. Michele M. Woodard dated March 6, 2012; the matters and are on the trial calendar in Supreme Court, Nassau County where the parties will next appear in the Central Jury Part on March 4, 2015. The instant appeal arose from a judgment entered upon an order of the Supreme Court granting the defendants motions to dismiss the complaint in action no. “3” under index no. 1834/11 entitled Edwin Davis and Dianna Davis v. South Nassau Communities Hospital, Regina E. Hammock,D.O., Christine DeLuca, RPA- C, and Island Medical Physicians, P.C, denying plaintiff’s cross-motion for leave to amend the complaint, and denying plaintiff’s cross-motion to consolidate action 3 with actions 1 and 2. There are no other pending appeals in any of the related cases. Dated: Mineola, New York January 29, 2015 Yours etc., BARTLETT, McDONOUGH & MONAGHAN, LLP By: /S/ ROBERT G. VIZZA ROBERT G. VIZZA Attorneys for Defendant-Respondent SOUTH NASSAU COMMUNITIES HOSPITAL Office & P.O. Address 170 Old Country Road, 4th Floor Mineola, New York 11501 Tel.: (516) 877-2900 Fax: (516) 877-0732 TABLE OF CONTENTS Table of Cases and Authorities ................................................................................. ii Introduction ................................................................................................................ 1 Counter Statement af Facts and Nature of the Case .................................................. 2 Questions Presented ................................................................................................... 8 Argument.................................................................................................................... 9 Point I. A physician does not owe a duty to un-identified members of the public at large, in the absence of a special relationship .................................. 9 A. The defendants did not have a special relationship to Davis, the plaintiff ................................................................................................ 10 B. Defendants did not have a special relationship to Walsh, and therefore had no duty to control her actions to protect third parties ... 14 C. Public policy considerations prohibit the creation of a duty to a prohibitively large number of potential plaintiffs, and the expansion of liability would result in higher liability insurance premiums, reduction of health care services, and rising health care costs ............................ 32 Point II. Amendment of the complaint would have been futile because re- labeling a malpractice claim as one for general negligence does not avoid dismissal for lack of duty, which is an element of any tort. .......................... 38 Conclusion ............................................................................................................... 45 i TABLE OF CASES AND AUTHORITIES Cases: Albala v. New York, 54 N.Y.2d 269, 429 N.E.2d 786 (1981) ................................. 36 Alaggia v. North Shore Univ. Hosp., 92 A.D.2d 532 (2nd Dept. 1983) ................. 40 Amadon v. State of New York, 149 Misc.2d 383 (Ct. Claims 1990) ........................ 41 Baker v Inamdar, 99 A.D.3d 742 (2d Dep't 2012) .................................................. 12 Barresi v. State of New York, 232 A.D.2d 962 (3rd Dept. 1996) ............................ 40 Bazakos v. Lewis, 12 N.Y.3d 631, 911 N.E.2d 847 (2009) .................................... 42 Bleilar v. Bodnar, 65 N.Y.2d 65, 479 N.E.2d 230 (1985) ...................................... 40, 42n3 Borillo v. Beekman Downtown Hosp., 146 A.D.2d 734 (2nd Dept. 1989) ............... 40 Candelario v. Teperman, 15 A.D.3d 204 (1st Dept. 2005) ...................................... 44 Citera v County of Suffolk, 95 A.D.3d 1255 (2d Dep't 2012) .................................. 25 Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 730 N.E.2d 949 (2000) .................... 12 Collins v. New York Hosp., 49 N.Y.2d 965, 406 N.E.3d 743 (1980); reargument denied 50 N.Y.2d 929, 409 N.E.2d 1016 (1980) ..................................................... 41 Coombes v. Florio, 877 N.E.2d 567 (Mass. 2007) .................................................. 34 Conboy v. Mogeloff, 172 A.D.2d 912 (3rd Dep’t 1991), leave den. 78 N.Y.2d 862, 582 N.E.2d 603 (1991) ............................................................................................. 26 ii DeAngelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053 (1983) ..................................... 37 Matter of Delio v. Westchester County Med. Ctr., 129 A.D.2d 1 (2nd Dept. 1987) ................................................................................. 22 Dunn v. State, 29 N.Y.2d 313 (1971) ...................................................................... 28 Eiseman v. State, 70 N.Y.2d 175, 511 N.E.2d 1128 (1987) .................................... 35 Engelhart v. County of Orange, 16 A.D.3d 369 (2nd 2005); leave denied 5NY3d 704 (2005) ................................................................................................................ 27 Ferretti v. Town of Greenburgh, 191 A.D.2d 608 (2nd Dept. 1993) ...................... 26 Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.E.2d 77 (1990) .................................. 22 Fox v Marshall, 88 A.D.3d 131 (2nd Dep't 2011) ................................................... 16, 18 Fox v. Marshall, 2014 N.Y. Slip Op. 32407(U), Index no. 14183/08 2014 WL 4721732 (Sup. Ct. Nassau County Aug. 29, 2014)(Winslow, J.) ............................ 17 Gitlin v. Chirinkin, 60 A.D.3d 901 (2nd Dept. 2009) ............................................... 44 Ingutti v. Rochester Gen. Hosp., 114 A.D.3d 1302 (4th Dept. 2014); appeal dismissed, 23 N.Y.3d 929 (2014) ............................................................................. 23 Jones v. State, 267 A.D. 254 (3d Dept 1943) .......................................................... 28 Klein v. Bialer, 72 A.D.3d 744 (2nd Dept. 2010) ..................................................... 12 Kowalski v. St. Francis Hosp. & Health Centers, 21 N.Y.3d 480, 995 N.E.2d 148 (2013) ....................................................................................................................... 23 Landon v. Kroll Lab. Specialists, Inc., 91 A.D.3d 79 (2nd Dept. 2011).................. 30, 34 iii Lauer v City of New York, 95 N.Y.2d 95, 733 N.E.2d 184 (2000) ......................... 31, 32 Leon v. Martinez, 84 N.Y.2d 83, 87-8 (1994) ........................................................... 2 Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914 (2nd Dept. 2013) ........................................................................................................................ 18 McNulty v. City of New York, 100 N.Y.2d 227, 792 N.E.2d 162 (2003) ................ 13 Megally v. Laporta, 253 A.D.2d 35 (2nd Dept. 1998) ........................................... 33, 37 Pacio v. Franklin Hosp., 63 A.D.3d 1130, (2nd Dept. 2009); affirming , Slip Op. 31702(U); 2008 WL 2563497, Index No. 9041-2006 (Supreme Court, Nassau County, June 10, 2008)(Feinman, J.) ...................................................................... 41, 42n3 Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579 (1994) ............ 30 Palsgraf v Long Is. R. R. Co., 248 NY 339, 162 NE 99 (1928) .............................. 37 Papa v. Brunswick Gen’l Hosp., 132 A.D.2d 601 (2nd Dept. 1987) ........................ 40 Petito v. City of New York, 95 A.D.3d 1095 (2nd Dept. 2012) ................................. 30 Pike v. Honsiger, 155 NY 201 (1898) ....................................................................... 9 Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 526 N.E.2d 4 (1988); rearg. den. 72 N.Y.2d 953 (1988) .............................................................. 13, 20 Rhodes v. Liberty Mut. Ins. Co., 67 A.D.2d 881 (2nd Dept. 2009) .......................... 15 Rivera v. New York City Health and Hosps. Corp., 191 F.Supp.2d 412 (SDNY 2002) ........................................................................................................................ 29 Schloendorff v Society of N. Y. Hosp., 211 N.Y. 125 (1914) ................................... 22 iv Schrempf v. State of New York, 66 N.Y.2d 289 (1985) .......................................... 14, 18, 29 Scott v. Ujanov, 74 N.Y.2d 673, 541 N.E.2d 398 (1989) ........................................ 40 Spina v. Jack D. Weiler Hosp. of Albert Einstein Coll. of Med., 28 A.D.3d 311 (1st Dept. 2006) ............................................................................................................... 44 Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64 (1981) ........................................ 22 Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985) ................................................. 33 Tenuto v. Lederle Lab., 90 N.Y.2d 606, 687 N.E.2d 1300 (1997) ......................... 10, 42 Tighe v. Ginsberg, 146 A.D.2d 268 (4th Dept. 1989). ............................................. 42 Urciuoli v. Lawrence Hosp. Ctr., 89 A.D.3d 533, 534 (1st Dept. 2011) .................. 44 Weihs v. State, 267 A.D. 233 (3d Dept 1943) .......................................................... 28 Winters v. New York City Health & Hosps. Corp., 223 A.D.2d 405 (1 st Dept 1996)28 Wood v. Strong Mem'l Hosp. of Univ. of Rochester, 273 A.D.2d 929 (4th Dept. 2000) ........................................................................................................................ 22 New York Statutes: N.Y. CPLR 208 ........................................................................................................ 39n2 N.Y. CPLR 214-a .................................................................................................... 39n2 N.Y. CPLR 3012-a ................................................................................................... 39n2 N.Y. CPLR 3017 ...................................................................................................... 39n2 N.Y. CPLR 3101(d)(1)............................................................................................. 39n2 v N.Y. CPLR 3211(a)(7) ............................................................................................... 1 N.Y. CPLR 3406(a) ................................................................................................. 39n2 N.Y. CPLR 4111(d) ................................................................................................. 39n2 N.Y. CPLR 4401-a ................................................................................................... 39n2 N.Y. CPLR Article 50-A.......................................................................................... 39n2 N.Y. Judiciary L. §474-a .......................................................................................... 39n2 N.Y. Mental Hygiene L. §9.13(b) ............................................................................ 30 N.Y. Mental Hygiene L. §9.27 and 9.37 .................................................................. 25 N.Y. Public Health L. §2504 ................................................................................... 22 N.Y. Public Health Law § 2805-d ........................................................................... 42 N.Y. Social Services Law § 2 [25] .......................................................................... 18 Regulations: 10 N.Y.C.R.R. §405.9(b)(13) .................................................................................. 24 18 N.Y.C.R.R. §485.6 .............................................................................................. 18 22 N.Y.C.R.R. §691.20(e) ....................................................................................... 39n2 Other Authorities: Mem. of State Exec. Dept. in support of L 1985, ch 294, 1985 McKinney’s Session Laws of NY, at 3022 ................................................................................................ 33 vi New York Pattern Jury Instructions PJI 2:151(A)(2) .............................................. 39n2 PJI 2:301................................................................................................................... 39n2 vii INTRODUCTION This brief is submitted on behalf of defendant-respondent South Nassau Communities Hospital in an appeal, taken by permission by the Court of Appeals (24 N.Y.3d 905), from the order of the Appellate Division of the Supreme Court in the Second Judicial Department (119 A.D.3d 512, Rii1) which upon review of a judgment in favor of the defendants, affirmed the order of the Supreme Court in Nassau County (Scher, J.) which granted the motions by the defendants to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action predicated on the absence of a duty owed by the defendants to the plaintiffs, and which denied the cross motion by the plaintiff seeking leave to amend the complaint and to consolidate the matter with two other actions (R3). For the reasons stated below, the Court is urged to affirm the Appellate Division’s order since to do otherwise would result in an extension of scope of duty on the part of hospitals and physicians to unidentified members of the public at large. The additional duties to unknown persons besides the patient would create untenable ethical dilemmas for physicians. Such an expansion of potential liability would be unwarranted by the principles of law in the State of New York, and result in a catastrophic increase in financial burdens to health care facilities, a 1 Numbers in parentheses preceded by the letter R denote pages from the record on appeal. 1 crisis in the fragile state of professional liability insurance, and rising health care costs in a time when affordable health care is a national priority. COUNTER STATEMENT OF FACTS AND NATURE OF THE CASE Plaintiff Edwin Davis and his wife, Dianna Davis, bring this action naming various health care providers as defendants, seeking to recover money damages for personal injuries alleged to have been sustained by Mr. Davis (R24). Davis does not allege that he ever sought or received medical care from the defendants, but rather that he was injured when his vehicle collided with another vehicle driven by Lorraine A. Walsh (aka Lorraine Walsh-Roman), after Walsh received medical care from the defendants on March 4, 2009 (A26, ¶13). Defendants, meanwhile, are prepared to prove at trial in a separate action brought by Walsh, that she was warned not to drive and that she gave assurances that she had a safe way to get home before she was administered the pain medications in the defendant’s emergency room. Nevertheless, for the sake of the motion to dismiss Davis’s complaint, the defendants acknowledge that the court must assume that the allegations in Davis’s complaint are true in order to test whether a cognizable cause of action has been stated. 2 Relying upon Leon v. Martinez, 84 N.Y.2d 83, 87-8 (1994), the Appellate Division permitted Davis to rely on the Walsh’s medical record from the emergency department (R233) as additional evidence to remedy the dearth of facts in the complaint. However, some of the factual assertions are not actually supported by the extrinsic proof, making it more difficult for plaintiffs to sustain their burden of demonstrating that the facts they allege would, if proven, give rise to a duty on the part of the defendants. Perhaps in an attempt to argue that immediacy in time serves their purposes in establishing causation or foreseeability, appellant’s counsel repeatedly suggests that the motor vehicle accident with Davis occurred only “nineteen minutes” after Walsh was discharged from the emergency department. This time frame is actually more than twice that span because Walsh left the E.R. at 12:05 pm, long before12:30 pm as argued by plaintiff. Davis alleges in his action against Walsh that the motor vehicle collision occurred at 12:49 pm on March 4, 2009 (R290 ¶13), apparently taken from the Police accident report (R225) reflecting what was reported to the Police Officer. Davis misinterprets the time of a single handwritten entry of time of the nurse’s signature when he or she closed out the chart at 12:30 pm (R241). This conveniently ignores no fewer than six entries in the chart indicating that Walsh was discharged no later than 12:05 pm. The physician’s assistant documented the discharge diagnosis (abdominal pain, ovarian 3 cyst), condition on discharge (stable), and disposition (discharged) timed at 11:55 am (R235). The two-page Discharge Instructions were printed at 12:05:41 pm, indicated in the top right hand corner of both pages (R237, 238). Similarly, the Work Release Form was printed at 12:05:42 pm (R239). A discharge summary shows in the upper right hand corner that it was printed at 12:05:45 pm and in the bottom right part of the page shows that DeLuca witnessed the patient’s signature at 12:05 pm (R236). This would mean that if the time of the accident was accurate, that at least double the amount of time elapsed after Walsh left the hospital, some forty-four minutes as opposed to the magic nineteen-minutes argued by Davis. Another warrantless assertion is that the chart documents how the defendants knew that the patient arrived in her own car, a conclusion which is not borne out by the letter C in the “Mode of Arrival” section of the emergency department chart (R233) which merely distinguishes that she came by private car rather than by ambulance or medical transport service. In addition, Davis argues incorrectly that the patient was not reevaluated by a physician which ignores the state of the law permitting physician assistants to practice under the supervision of a physician, and more importantly ignores the chart entry indicating, “P(atien)t discussed (with) Dr. Hammock and advised patient can be discharged and sent home on Donnatol. Patient reevaluated at discharge and abd(omen) soft, nontender ***.” (R235) 4 Defendants moved to dismiss the claims of medical malpractice, two nearly identical causes of action for negligent hiring, training, and supervision of medical personnel, and derivative claims for loss of services to Davis’s spouse, on the grounds that there was no allegation that Davis ever sought or received any medical care from the defendants. Defendants in the case at issue are a hospital, a physician’s assistant, a supervising physician, and a professional corporation, but to avoid the use of a more encompassing but cumbersome term such as health care providers, for purposes of this brief the respondents will refer alternatively to doctors, hospitals, or physicians in a general and expansive sense of the words to indicate all defendants in the instant matter. In opposing the motion to dismiss in the trial court, Davis did not argue that Walsh had given the defendants any basis to detain or restrain her, but instead argued that the defendants failed to warn her not to drive, and failed to have her secure a ride from the hospital. Tacitly conceding that without a physician-patient relationship, Davis had no basis for the first element of a cause of action sounding in medical malpractice, plaintiff cross- moved for leave to amend the complaint to fashion the same departures, originally alleged as medical malpractice, into a more general negligence claim. The duty, Davis argued, arose from the defendants launching an instrumentality of harm in the form of a human being, Walsh (R213 ¶35), or that 5 they exercised “control” over Walsh by virtue of “ordering” her discharge from the hospital (R218 ¶45). Plaintiff also sought to consolidate Davis v. South Nassau Commun. Hosp. et. al. (non-patient driver vs. hospital) with Davis v. Walsh (driver vs. driver), and with Walsh-Roman v. Hammock (patient vs. doctor). The Supreme Court in Nassau County pointed out, correctly, that Davis’s complaint does not present one of the rare cases where medical malpractice liability is extended outside of the physician-patient relationship “to identified persons foreseeably at risk” (R6). Even if, as Davis alleges, the defendants failed to warn Walsh of the dangers of driving in an impaired condition, the defendants did not have a duty to the driving public. Noting of course that a medical malpractice action does not lie without a physician-patient relationship as a basis for duty, the trial court touched on the distinction between medical malpractice and negligence. Suggesting that these facts fall short of alleging anything but medical malpractice because the alleged negligent act or omission (the decision to discharge Walsh) related directly to the provision of medical treatment to Walsh, the trial court then proceeded to deny the plaintiff’s cross motion to amend the complaint because the proposed claim for ordinary negligence also failed for lack of any duty owed by the defendants to Davis. 6 Noting that even if the defendants could have, as a practical matter, exercised control over the patient, there was no duty at law to control her actions. Further, there was no special relationship between defendants and Davis; there was also no known close family relationship between Walsh and Davis; nor was there a special relationship “such as would require the defendant to control the third person’s conduct” (R10). Appeal to the Appellate Division, Second Judicial Department, from the judgment in favor of the defendants, brought up review of the order granting the motions to dismiss, and denying the cross motion for leave to amend the complaint since there was no duty as a matter of law, and denying consolidation with the other actions as academic. It is axiomatic that there was no physician-patient relationship, and that any analysis of duty is a threshold question of law to be determined by the courts. The Second Department appropriately affirmed the judgment, pointing out that there could be no special relationship with Walsh so as to create a duty running to Davis because the proposed amended complaint did not contain any facts that would give the defendants the legal authority to control Walsh. 7 QUESTIONS PRESENTED 1. Do physicians owe a duty to unidentified members of the public at large in the absence of a special relationship and without any legal authority to control the actions of a third person who was their patient? The lower courts appropriately answered this question in the negative, dismissing the complaint because the facts alleged did not present any of the rare circumstances where a physician’s liability for medical malpractice could possibly extend beyond the physician-patient relationship. 2. Can amendment of a complaint to add a cause of action in general negligence be used as a device to avoid the lack of the element of duty in a tort? The lower courts properly denied leave to make such an amendment to the complaint, because the test for duty is the same for any negligence cause of action, and that the alleged breach of the duty was based on acts or omissions which constitute or bear a substantial relationship to the provision of medical treatment to a patient, therefore sounding in medical malpractice. 8 ARGUMENT Point I. A physician does not owe a duty to un-identified members of the public at large, in the absence of a special relationship. It is not disputed that the first element in a cause of action sounding in medical malpractice is a duty arising from a physician-patient relationship. A physician’s duty to use reasonable care and conform to the standard of care is triggered by accepting the case to treat the patient. Pike v. Honsiger, 155 NY 201 (1898). Courts in the State of New York have been appropriately reluctant to expand the scope of that duty. Only in rare, limited circumstances has a physician been held liable for malpractice with a duty running to someone who is not a patient. The case at bar presents no such exception to the rule, as there is no allegation that Davis had any privity with the defendants. Not only is there no special relationship between Davis, the plaintiff, and the defendants, but there is no special relationship with Walsh, the patient, that would give rise to the legal authority to control Walsh’s actions. In the case at bar, the alleged act or omission of negligence entails the failure to warn Walsh not to drive which raises the problem that even if they had given such a warning Walsh’s conduct in accepting or rejecting that advice would be a superseding intervening cause making causation all but tenuous. Davis also alleges that the defendants were negligent in discharging Walsh from the hospital, 9 allegedly allowing her to drive herself home, ignoring the fact that the hospital and doctors do not have any legal authority to control her actions. Another factor here is that the appellant here is asking the Court to extend a duty to a non-patient, someone with absolutely no connection to the doctor or the patient at the time of treatment. Doing so would mean exposing health care providers to liability to an innumerable class of plaintiffs, with catastrophic results. A. The defendants did not have a special relationship to Davis, the plaintiff. The class of persons to whom a physician is liable rarely extends beyond the physician-patient relationship. In Tenuto v. Lederle Lab., 90 N.Y.2d 606, 687 N.E.2d 1300 (1997), the Court of Appeals held that it must only be in the rarest of cases where a doctor’s duty might extend to members of a patient’s household. Under the limited circumstances of Tenuto, the doctor owed a duty to the infant patient’s father whom the doctor knew might be susceptible to infection, sustaining a complaint alleging the failure to warn the father of the risk, when administering a live virus oral vaccine to the infant, that he could contract polio. Id. Appellant suggests that a duty could/might extent to those whom the doctor knew were foreseeably at risk, but it is only the unofficial headnotes and not the text of the Tenuto decision which supports this proposition. Rather, the Court of Appeals was very careful to limit the duty, which arose not out of foreseeability, 10 but out of a special relationship between a pediatrician and the patient’s father. After all, the court noted, the parents engaged the pediatrician, and a pediatrician’s services, by necessity, require involving the parents when treating a five month-old infant. It is also important to note that in Tenuto, the doctor not only knew the father, but also knew that Mr. Tenuto was about to undergo surgery. Id at 611. This made Mr. Tenuto an identified person, known to the doctor as someone who was relying on him for his service to the patient. Id at 612. Plaintiff in the case at bar was not known to the defendants. Neither did the plaintiff know that the defendants were rendering medical care to Ms. Walsh. Davis had no way of knowing Walsh was in the E.R., and therefore had no basis to rely upon the care being given to Walsh. Davis cannot possibly argue that he acted in detrimental reliance on treatment that he did not know was taking place. Even if he came up with the theory that he chose his driving route based on the confidence that a hospital somewhere nearby was doing a good job for its patients, it would not be sufficient to create a duty running to him. While Tenuto permitted a claim by an immediate family member, the circle is not large enough to encompass all family members, or even all parents of infant patients. Despite the interwoven relationships between a pediatrician, the infant patient, and the parents who retain the physician, the courts will not extend the 11 duty to all parents let alone known family members. For example in Baker v Inamdar, 99 A.D.3d 742 (2d Dep't 2012), the court disallowed a parent’s malpractice claim: “According to the allegations in the complaint, the physician-patient relationship here was between the defendant and the plaintiff's child, not the plaintiff and, thus, the allegations do not support a duty of care owed by the defendant to the plaintiff.” Id at 744. Where there was an alleged failure to warn, even the parents of a pediatric patient do not always have a claim against the physician. Klein v. Bialer, 72 A.D.3d 744 (2nd Dept. 2010). Time and time again the Court refused to extend the duty of a physician beyond the patient, even known family members, and even under circumstances where it is obvious they would be affected by the treatment. In Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 730 N.E.2d 949 (2000) a surgeon performing a fertility enhancement procedure on a male patient had no duty to the spouse. Her claims for mental anguish relative to having to undergo in vitro fertilization were dismissed, since the surgeon owed no duty of care to the wife who was not his patient. Despite the close relationship, the clearly limited number of people who would be affected by the husband’s ability to conceive without intervention, and obvious foreseeability of an impact on the wife who then underwent procedures of her own, there was no duty owed to her. Id. 12 Plaintiff attempts to distinguish Cohen by resort to histrionic description of the car crash as an “abrupt, cataclysmic event.” However, Cohen turned not on whether the injury was sudden, but on the voluntary act by the wife in undergoing additional treatment of her own - in the case at bar it was the voluntary act of Ms. Walsh-Roman in getting behind the wheel which caused the injury. It is often stated that not every mistake leads to liability, because of the all- important legal concept of the scope of duty. In McNulty v. City of New York, 100 N.Y.2d 227, 792 N.E.2d 162 (2003) the court refused to hold a doctor liable to a friend of a meningitis patient, even where the doctors knew the friend, and even where it was alleged that the friend relied on the doctor’s advice. Duty was not extended beyond the physician-patient relationship: A critical concern underlying this reluctance is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs. Id at 232. Davis argues that the mere chain of causation between the medical treatment and the motor vehicle accident should be sufficient to avoid the impact of cases such as Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 526 N.E.2d 4 (1988); rearg. den. 72 N.Y.2d 953 (1988), which held that the health care provider is not liable to members of the general public for injuries caused by a patient who drives a car. Appellant also argues that causation alone should be 13 sufficient to expand the boundaries tested in Tenuto. However, causation is a separate element of a tort cause of action, and should not substitute for the element of duty. After all, foreseeability (particularly in hindsight) is not enough to create a duty to the motoring public at large. Appellant attempts to take, out of context, language in McNulty, 100 N.Y.2d at 234 suggesting that the court found no duty because the injury did not “arise” because of the doctor’s treatment. This by no means suggests that the courts would impose a duty to non-patients just because the injury was caused by the treatment, and in fact the notion was flatly rejected in Schrempf v. State of New York, 66 N.Y.2d 289 (1985). As a result, Davis is unable to establish any special relationship between the medical malpractice defendants and Davis, a motorist on the highway whether he was close or distant from the hospital. B. Defendants did not have a special relationship to Walsh, and therefore had no duty to control her actions to protect third parties. Appellant argues that the specialized knowledge utilized by health care providers should be elevated in importance and impact so that it all of a sudden creates not only fiduciary but also contractual relationships and obligations. Yet, even a claim for breach of fiduciary obligation can only be brought by the beneficiary. Instead plaintiff tries to extend the “fiduciary” obligations of a 14 physician beyond the patient to any number of un-identified persons. How can a physician, or anyone, serve so many masters? It is impossible to fulfill the obligations of loyalty that a fiduciary relationship entails if one does not know the other person in that relationship. On the other hand, the physician-patient relationship cannot be a substitute for the type of special relationship necessary to trigger a duty to control Walsh’s conduct. Davis now argues for the first time on appeal to the Court of Appeals that the legal authority to control Walsh arose somehow from Walsh’s affirmatively granting or conveying that power upon the hospital simply by becoming a patient. Naturally the Court is urged to disregard this suggestion which was not raised in the nisi prius court. See Rhodes v. Liberty Mut. Ins. Co., 67 A.D.2d 881, 882 (2nd Dept. 2009). In any event, Davis now argues that the power to control Walsh arose, not by operation of any existing law or statutory power, but they argue that, simply presenting to the emergency department for treatment of abdominal pain from a non-psychiatric disease process was tantamount to giving up her civil rights. This suggestion does nothing to avoid the impact of existing law which requires not only the ability, but also the concrete legal power, to control a third-party’s actions. Such a legal authority does not arise from the facts alleged by plaintiff. Appellant relies upon Fox v Marshall, 88 A.D.3d 131 (2nd Dep't 2011), for the proposition that a “negligence” cause of action was made out in the complaint 15 as against the facility, SLS, when a patient, Marshall, left on a day pass and murdered the plaintiff’s decedent. As for the medical malpractice claim, the Second Department held that “the extension of a physician's duty of care beyond a narrow class of potential plaintiffs, such as immediate family members, cannot be supported under any analysis of duty.” Id at 139. As discussed below in Point II of this brief, the characterization of a separate claim for negligence is unnecessary, since the real issue is whether a physician has a duty to someone outside the physician-patient relationship. Appellant slyly suggests that Fox, 88 A.D.3d 131, permitted a negligence claim, but leaves out the facts upon which that allegation was made. The assailant in Fox was given a pass which he needed to leave the secure mental health facility (he did not escape as appellant argues) and the court held this fact, if proven, would be relevant to whether the facility did in fact have “a certain level of control” over the assailant patient. Id at 137. There is no such element of legal power to control the patient in the case at bar. Citing Purdy, the court in Fox repeated that it is only where the defendant has the authority - not just the ability - to control the third party that a duty could possibly arise. Id at 136. In examining that question of authority to control, the Appellate Division in Fox downplayed the use of the term voluntary in the written agreement between Marshall and SLS, pointing out that the member needed thirty- 16 days’ notice to leave the program. There, the court construed the allegation in the complaint that the patient needed (and was given) a pass to leave the facility as evidence (or allegation sufficient to sustain the pleadings) “that the facility has the ability to control the patient’s actions” which as a result “may” give rise to a duty, suggesting that, in contrast to the driver in Purdy, “he was not completely free to leave the facility”. Id at 134, 137. The decision in Fox specifically cautions that it appeared at the pleading stage that SLS “exercised a certain level of authority and control over Evan Marshall…. the degree of such control is unclear at this stage of the case.” Id at 137. We now know from subsequent litigation in the Fox matter that on remand, the trial court characterized the Appellate Division’s decision as holding that the voluntary status was not dispositive and from the facts alleged in the pleadings, there appears to have been some exercise of control actually exercised by the defendant, even more than just requiring that the patient have a pass to leave the facility. Fox v. Marshall, 2014 N.Y. Slip Op. 32407(U), Index no. 14183/08 2014 WL 4721732 (Sup. Ct. Nassau County Aug. 29, 2014)(Winslow, J.). After discovery on the issue of whether a pass was necessary, the parties moved for summary judgment. The trial court noted that the contract signed by Evan Marshall recited several provisions relevant to the exercise of control, despite the voluntary nature of the treatment: Marshall’s room was subject to search by the 17 facility; the facility preserved the contractual right to notify the police if he left the premises; and the facility retained the right to restrict his use of his car or his ability to keep it on the premises without giving any reason for such action. Id. Facts that could give rise to a power on the part of SLS to control Marshall arose from their contract, something that has no parallel in the case at bar. In discussing Fox, the Second Department has subsequently confirmed that the need for a day pass, a fact alleged in the complaint in that case, was a pivotal in creating the possibility that the defendant facility had authority to control the assailant. In Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914 (2nd Dept. 2013) the Appellate Division distinguished its own holding in Fox, by pointing out (as in the case at bar) that the facility had no duty of care to control the resident who was free to come and go, and hence no liability to the person he was alleged to have injured: [A]s an ACF [adult care facility, as the term is defined by Social Services Law § 2 [25]; 18 NYCRR 485.6], its residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Because it is an ACF, Lakeside's control over Fierro, “and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions” (Schrempf v State of New York, 66 N.Y.2d 289, 296 [1985]). Lakeside did not require the issuance of day passes, which would have been indicative of “a certain level of authority and control” over its residents (Fox v Marshall, 88 A.D.3d at 137), who did not “relinquish general autonomy” (Purdy v Public Adm'r of County of Westchester, 72 N.Y.2d at 7). Malave, 105 A.D.3d at 916. 18 Unlike Fox, Davis’s complaint and proposed amended complaint do not allege any facts that would establish the legal authority of the defendants to control Walsh. In her answer to Davis’s complaint, Walsh alleges instead that the accident was the result of a temporary physical condition not of her own making (R297 ¶13). In her own separate action against SNCH, Walsh alleges that as a result of negligence in the care and treatment, specifically administering medications and discharging her after a period of time, she became unconscious and sustained personal injuries of her own in the motor vehicle accident (R305-7 ¶21-28). Nowhere in either of their complaints does Davis or Walsh allege that the medical malpractice defendants had any legal authority to control Walsh. Rather, Davis alleges that Walsh “sought the professional care of the defendants” (R455 ¶13) and that she was “lawfully on the aforesaid premises of South Nassau Communities Hospital.” (R458 ¶31). Even though there is no basis to allege a fiduciary or contractual relationship between defendants and Walsh, appellant still argues that the physician-patient relationship was enough to create a duty on the part of the defendants to control Walsh. This claim however, flies in the face of the patient’s rights. In Purdy, 72 N.Y.2d 1, the plaintiff was struck by an elderly driver who was a voluntary resident of the defendant nursing home where a physician treated her for a medical condition which left her susceptible to fainting spells and blackouts. 19 Plaintiff in Purdy argued that, as a model patient, Shaw (the driver) would have followed the doctor’s advice had she been warned not to drive her car. In rejecting that argument, the Court held that the driver was free to come and go from the facility and did not give the physician or hospital the authority in nonemergency circumstances to restrict her from leaving the facility. Even though in hindsight one would have preferred that the defendant did not let the driver leave the premises, there simply was no liability because there was nothing to trigger a legal power to control her: In the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons. This is so, we have said, even where as a practical matter defendant could have exercised such control (citations and internal quotations omitted). Id at 8. The Court in Purdy went on to explain the limited types of relationships, none of which were presented in that case or in this one, in which there could be some legal power of control, such as “the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger.” Id at 8. 20 The Court stressed that the defendant must have not only the ability but also the legal authority to control the person, and without both there can be no duty to the public at large, noting as follows: Plaintiff points to no provision of the Public Health Law or regulation governing health-related facilities that either authorizes or requires defendants to prevent Shaw -- in nonemergency situations -- from leaving the premises or to control her conduct while she is off the premises. Indeed, the statute and regulations provide for just the opposite -- the right of the voluntary resident to make independent personal decisions, the right to exercise civil and religious liberties and the right to be free from physical restraint, except where emergency dictates otherwise (citations omitted). Id at 8-9. Plaintiff in the case at bar points to no statute or regulation that would empower the hospital to restrain Walsh. Whatever “medical reason” there may have been to have impeded Walsh’s ability to leave the hospital unaccompanied, to borrow a phrase from Purdy, the alleged medical malpractice on the part of the defendants did not trigger any power to restrain or detain Walsh, and therefore there was no duty to Davis to control the actions of Walsh. Walsh never waived her legal right to leave the hospital at any time, regardless of whether any warnings were given not to leave or not to drive. In 1981 the Court of Appeals reiterated the common-law right to refuse medical treatment, even in extreme circumstances where exercise of the right to refuse treatment would hasten death: At common law, as Cardozo noted, every person “of adult years and sound mind has a right to determine what should be done with his own body; and a surgeon who performs an operation without his patient's consent commits an 21 assault, for which he is liable in damages * * *. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.” Schloendorff v Society of N. Y. Hosp., 211 NY 125, 129- 130 (1914). Matter of Storar, 52 N.Y.2d 363, 376, 420 N.E.2d 64 (1981). Seventy-Six years after Justice Cardozo’s opinion in Schloendorff, Chief Judge Wachtler wrote of a patient’s right to decline blood transfusions based on her beliefs as a Jehovah’s Witness, confirming that, “[I]n this state a competent adult has the right to determine the course of his or her own medical treatment and may decline even lifesaving measures, in the absence of a superior State interest.” Fosmire v. Nicoleau, 75 N.Y.2d 218, 221, 551 N.E.2d 77 (1990). As a competent adult, Walsh was empowered to consent to her own medical care and treatment under N.Y. Public Health L. §2504, the corollary of which is that she had the right to refuse medical treatment. See Matter of Delio v. Westchester County Med. Ctr., 129 A.D.2d 1, 14 (2nd Dept. 1987). As a result she had every right to walk out of the hospital whether or not it would be injurious to her health. In Wood v. Strong Mem'l Hosp. of Univ. of Rochester, 273 A.D.2d 929 (4th Dept. 2000), the hospital could not assert the defense of justification when security guards forcibly removed a patient from an elevator in an attempt to prevent him from going outside for a cigarette after undergoing neck fusion surgery. The patient had the right to decline medical treatment and walk out since he was not about to commit suicide or inflict serious injury on himself. Id at 930 22 Although it may be common practice for the hospital to request that a patient leaving “AMA”(against medical advice) sign a form, there is no legal requirement for a person to “sign out.” This is true whether or not the patient is admitted as an inpatient, there is no power to impede or place conditions on a patient leaving of their own free will. Ingutti v. Rochester Gen. Hosp., 114 A.D.3d 1302, 1303 (4th Dept. 2014); appeal dismissed, 23 N.Y.3d 929 (2014). The Court of Appeals has recognized that a hospital has no power, and hence no duty, to prevent a patient from leaving a hospital without medical advice. We hold that, on the facts of this case, a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving the hospital. Kowalski v. St. Francis Hosp. & Health Centers, 21 N.Y.3d 480, 483, 995 N.E.2d 148, 149 (2013). The defendants in the case at bar, like the hospital in Kowalski, “had no right, and therefore could not have had a duty,” to prevent the patient from leaving the emergency room. Id at 995. Even if the defendants had given the warnings that Davis allege they failed to give, Walsh still had nothing to stop her from walking out of the hospital. Appellant attempts to distinguish Kowalski by asserting that the patient submitted to the hospital’s authority. However, there is no basis in law for this argument, and even more ironically, we know Walsh actually presented to South Nassau Communities Hospital the day before, on the advice of her private doctor, but the 23 chief complaint/history of present illness in the Emergency Department record states, “Pt. states came to E.D. for sono yesterday but left because it looked too crowded.” (R233). Meanwhile Davis alleges that the defendants somehow violated 10 NYCRR §405.9, the Dept. of Health regulation addressing “Admission/discharge” in hospitals. While that regulation does open with a provision requiring a hospital to have written admission and discharge policies, the remainder of the paragraph indicates that this is in order to avoid the prohibited use of referral agencies for that purpose. 10 NYCRR §405.9(a). That regulation, however, speaks to the requirement that a patient being admitted to the hospital (not an emergency department patient) must have a private physician who has admitting privileges, or if they do not then the hospital must assign a member of the staff for that purpose who will have responsibility for supervising the patient’s care. §405.9(b). To the extent that paragraph (f) requires a discharge plan, Walsh did have a discharge plan and was given discharge instructions explaining what an ovarian cyst is, and amongst other advice she was instructed to rest in bed, follow up with her doctor after her next menstrual period or in two or three days if the pain did not improve, and warning her she might experience problems that would require her to return to the emergency department or call her doctor immediately - including weakness, 24 dizziness, or fainting (R237-8). She was also given a note to stay home from work until Saturday, March 7 (R239). Indeed the very regulation cited by plaintiff specifically prohibits detaining a patient against his or her will: No patient 18 years of age or older shall be detained in a hospital against his will, nor shall a minor be detained against the will of his parent or legal guardian, except as authorized by law. This provision shall not be construed to preclude or prohibit attempts to persuade a patient to remain in the hospital in his/her own interest, nor the temporary detention of a mentally disturbed patient for the protection of himself/herself or others, pending prompt legal determination of his/her rights. §405.9(b)(13). The patient’s autonomy can only be infringed by a hospital under the strict requirements and procedures set forth in the Mental Hygiene Law. A hospital can only detain a patient who is a danger to themselves or others by virtue of the need for treatment of a mental illness. It cannot be stressed that the statutory provisions, for instance Sections 9.27 and 9.37 of the Mental Hygiene Law, only apply where a patient has a mental illness for which immediate inpatient care and hospitalization is appropriate. Otherwise the psychiatrist would be liable for unlawful imprisonment. Even where a mentally ill patient of an outpatient psychiatric treatment program killed his mother, the facility did not hold a duty to the public at large. Citera v County of Suffolk, 95 A.D.3d 1255 (2d Dep't 2012). The defendant facility 25 was entitled to dismissal of the complaint because it lacked the requisite authority or ability to control the patient, therefore there was no special relationship. Id at 1259. Just because a patient is a “danger to self or others” the physician does not have any power to detain the patient unless and until there is a threshold diagnosis of an un-treated mental illness, clearly something missing from the facts alleged in Davis’s complaint. Plaintiff has made no allegation that Walsh had a psychiatric diagnosis or was in need of emergency psychiatric treatment, in which case liability for detention under Mental Hygiene Law Article 9 would be privileged absent medical malpractice, in other words the exercise of medical judgment is a defense to such claims. See Ferretti v. Town of Greenburgh, 191 A.D.2d 608, 610 (2nd Dept. 1993). In a case remarkably similar to the facts in the case at bar, the Third Department, following Purdy, held that the defendant physician had no duty to the children injured in a motor vehicle accident based on the alleged failure to warn their mother against driving while taking Fiorinal for migraine headaches. Conboy v. Mogeloff, 172 A.D.2d 912 (3rd Dep’t 1991), leave den. 78 N.Y.2d 862, 582 N.E.2d 603 (1991). The lack of duty hinged on the fact that the patient was not under the control of the doctor, and was free to reject the advice to drive or not. 26 In Engelhart v. County of Orange, 16 A.D.3d 369 (2nd 2005); leave denied 5NY3d 704 (2005), plaintiff’s decedent was a pedestrian who was killed by a psychiatric patient driving on a pathway through a park. The complaint was properly dismissed because, although they might have had the power to control an involuntarily admitted in-patient, that case involved an outpatient. Because the driver in Engelhart was not an involuntarily-committed psychiatric patient, there could be no duty on the part of the facility to prevent the patient from driving. Despite the fact that the plaintiff submitted expert opinion in an affidavit to the effect that it was a departure for the psychiatrist not to call the police to alert them of the immediate need for involuntary hospitalization, summary judgment was granted to the defendant on the issue of lack of duty. The court held that the defendant psychiatrist did not have control over the patient absent the circumstances that trigger Mental Hygiene Law §9.27, and without it there was no power, or duty, to control the patient: Generally, a doctor does not have sufficient control over a voluntary outpatient to impose liability. Liability can be imposed for releasing a mental patient from an inpatient facility. This is based upon the facility's duty to restrain dangerous or potentially dangerous persons under its control (citations omitted). Id at 371. A host of cases relied upon by plaintiff pertain to the powers and responsibilities triggered by a patient’s mental illness if it results in a known risk of 27 danger to themselves or others. Some of those cases upon which appellant relies actually stand for the proposition that the hospital is not liable for allegedly failing to control a voluntary psychiatric patient who left the facility, since the power to control them under Article 9 of the Mental Hygiene Law is not triggered. E.g. Winters v. New York City Health & Hosps. Corp., 223 A.D.2d 405 (1st Dept. 1996). In Dunn v. State, 29 N.Y.2d 313 (1971), the Court did not have to examine the scope of duty theoretically owed to the community for its negligence in allowing a patient to escape from a “closed” or lock-down unit, where the intervening cause of police chasing the escapee at ninety miles per hour cut off any chain of causation and the complaint was dismissed. Id at 317. Nevertheless appellant cites a string of cases involving the duty to maintain security measures to prevent the elopement of psychiatric patients, which of course have nothing to do with the facts alleged in this matter. Nevertheless appellant resorts to citation of these arcane cases from the early half of the last century involving escape of “insane inmates” from state institutions. E.g. Jones v. State, 267 A.D. 254 (3d Dept. 1943); Weihs v. State, 267 A.D. 233 (3d Dept. 1943). Yet in the case at bar the alleged need to restrain Walsh did not arise from any psychiatric illness. The courts have already recognized that the duties of psychiatrists and mental health practitioners are different than those of all other 28 physicians. See Rivera v. New York City Health and Hosps. Corp., 191 F.Supp.2d 412, 417 (SDNY 2002). In Schrempf , 66 N.Y.2d 289, the Court of Appeals dismissed a claim by surviving spouse of a stabbing victim against the state dismissed on multiple grounds: (1) the state was not liable in the absence of a special relationship, and (2) the physician who discharged a psychiatric inpatient (a paranoid schizophrenic with a history of violent outbursts) to outpatient care cannot he held liable for a mere error in judgment, and (3) the failure to act when the physician learned the patient was off his medications was not actionable since the doctor did not have control over the patient. Id. The Court of Appeals in Schrempf rejected the claimant’s argument that a special relationship should not be necessary where it is alleged that the negligent care and treatment was a causative factor in the injuries. Appellant in the case at bar is attempting exactly the same argument that was already held to be contrary to the law. Id at 293. In view of the fact that Evans was a voluntary outpatient, the State's control over him, and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions. Id at 296. However it is important to note that all of the cases involving psychiatric patients are distinguishable from the instant matter because even a voluntarily 29 admitted patient cannot walk out of a locked psychiatric unit. Rather, the hospital has the legal power to retain that patient for seventy-two hours after a patient gives notice that they wish to leave, as provided in N.Y. Mental Hygiene L. §9.13(b). Thus it is possible to have a special relationship giving rise to a duty to members of the public at large to control the conduct of psychiatric inpatients and prevent them from eloping, since at least the factor of authority and opportunity to control the patients would be present in such a situation. Again that is not the situation presented by Davis. Attempting to apply a concept applicable only to the analysis of third-party beneficiaries to a contract, appellant argues that a duty should be imposed to control Walsh’s actions because the defendants somehow “launched an instrumentality of harm.” Examination of the cases typically applying that theory, however, reveals that it applies only to inanimate objects. One wonders if Ms. Walsh would appreciate being likened to the roadway barrier in Petito v. City of New York, 95 A.D.3d 1095 (2nd Dept. 2012), or the wall-mounted electric fan in Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579 (1994); but the fact remains that the courts have never applied the doctrine to impose liability for failing to control the actions of another human being. Plaintiff’s citation to Landon v. Kroll Lab. Specialists, Inc., 91 A.D.3d 79 (2nd Dept. 2011), is unavailing for two reasons. First the “launching of an 30 instrumentality” arose from disseminating an erroneous written report, not the discharge of a live patient from the emergency room. Second, the drug test laboratory was found to have a duty to the drug test subject because there was a direct connection there, after all it was Landon’s specimen that was being tested, so the fact that contractual privity ran only to the Probation Department was not a bar to Landon’s claim against the laboratory. Landon merely held that the laboratory held a duty of care to the patient whose specimen they were testing - clearly an identified person with a very close personal tie to the defendant’s activities, meaning the harm was not remote or attenuated. While it does not help plaintiff’s case in the present appeal, Landon does stand for the proposition that a duty can only be extended to a “narrow class of specific and readily identifiable individuals.” Id at 87-88. "Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" Id at 85, quoting Lauer v City of New York, 95 N.Y.2d 95, 100, 733 N.E.2d 184 (2000). Since Davis does not allege that the defendant hospital or medical providers brainwashed Walsh and set her loose, it cannot possibly be said that the medical malpractice alleged in Davis’s complaint in any way arises to the level of “launching an instrumentality” and plaintiff cites no cases where the intentional conduct of a person, over whom the defendant has no legal power of control, can be viewed as grounds to create a duty to unknown third parties. Appellant’s 31 argument that Walsh was “released” (when she was instead discharged, never having been under any detention or control of the hospital) fails and therefore there can be no liability for “launching an instrumentality of harm.” C. Public policy considerations prohibit the creation of a duty to a prohibitively large number of potential plaintiffs, and the expansion of liability would result in higher liability insurance premiums, reduction of health care services, and rising health care costs. No matter how egregious appellant believes the defendants’ malpractice is alleged to have been, it cannot be enough to impart a duty to the plaintiff in this case. Whether the theories of liability may be socially desirable, the concepts of discouraging driving while impaired on prescriptions is not grounds to hold the medical defendants in this case liable to Davis. In Lauer, 95 N.Y.2d 95, as a result of an erroneous report from the Medical Examiner, the plaintiff became subject to public ridicule as a murder suspect in the investigation of his son’s death (police told family members at the funeral that the plaintiff killed his son by twisting his neck). However the lawsuit could not be maintained because of the limitations of legal duty: Fixing the orbit of duty may be a difficult task. Despite often sympathetic facts in a particular case before them, 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. Time and again we have required that the equation be balanced; that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general 32 duty to society, but a specific duty to him. (emphasis added, citations and internal quotation marks omitted). Id at 100. In Megally v. Laporta, 253 A.D.2d 35 (2nd Dept. 1998), the court dismissed a claim by a surgeon against a hospital and pathologist seeking to recover for injury to his reputation after he performed unnecessary mastectomy surgery on a patient based on the pathologist’s misdiagnosis. On the threshold issue of duty to be determined by the court and not the jury, “Foreseeability of injury does not determine the existence of duty.” Id at 41, quoting Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402 (1985). The court went on to caution that public policy considerations warrant restriction, not expansion, of liability faced by physicians today: In the case before us, this Court’s determination of *** whether privity or a relationship akin to it exists, is influenced by policy concerns. In that regard, we conclude that adverse consequences to the public would be inevitable were we to determine that a duty exists. Additional litigation would result in increased malpractice premiums, and an overburdening of the courts, all ultimately taxing the public***. In addition, patients would not derive any additional benefit since a physician’s liability to patients is clearly recognized based on a duty of care running from both the referring and the consulting physician to the patient…. We note also that the Legislature has expressed significant concern regarding medical malpractice insurance premiums and their burdens to the public. The major objective of reform legislation enacted in 1985 was to moderate the cost of medical malpractice premiums (Mem. of State Exec. Dept. in support of L 1985, ch 294, 1985 McKinney’s Session Laws of NY, at 3022). Id at 41-42. 33 Appellant hopes that a mix of decisions in other jurisdictions might be persuasive, for instance Coombes v. Florio, 877 N.E.2d 567 (Mass. 2007). Coombes was a pedestrian struck by a driver, Sacca, who claimed that the accident was caused by side effects of medication prescribed by Florio. Coombes sued Florio alleging the failure to warn his patient Sacca of the side effects. The Massachusetts Supreme Court agreed to expand the doctor’s liability beyond the physician-patient relationship based on the foreseeability of harm, but as discussed above the courts in New York do not treat duty so casually and do not stop the analysis once the question of foreseeability arises. Appellant tries to suggest that road travelers are a “defined limited class” which flies in the face of logic. Where and when would appellant have the courts set the limit? Should the limit be set at nineteen minutes when plaintiff argues the accident occurred, or forty-four minutes which actually elapsed in this case, or maybe some geographical boundary, or maybe a different time or distance for people who drive fast and might get further away? Any of these attempts would fail to specifically identify the persons to whom a duty is owed. Rather, appellant is asking the courts to extend a duty beyond a “narrow class of specific and readily identifiable individuals,” as in Landon, supra, and would have the new rule result in a “crushing burden of limitless liability.” Landon, supra, at 87-88. 34 Again, motorists are simply too vague and unidentified a class of persons to whom appellant proposes an extension of duty. In Eiseman v. State, 70 N.Y.2d 175, 511 N.E.2d 1128 (1987), the Court of Appeals refused to extend a physician’s duty to the student body at large a known quantity of people, despite the knowledge that the report would be used by the college Embedded in the law of this State is the proposition that a duty of reasonable care owed by the tort-feasor to the plaintiff is elemental to any recovery in negligence. Foreseeability of injury does not determine the existence of duty. Unlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree (citations and internal quotations marks omitted). Id at 187. Recognizing the fragility of that argument, appellant backs away from the size of the class and argues instead that - despite the unwieldy number of potential plaintiffs traveling the public roadways - that the test should instead be the number of actual plaintiffs in the present case. In confusing causation with duty, appellant argues that if the alleged malpractice caused an injury, then in hindsight the injury was foreseeable, and if it was foreseeable that alone should create a duty. Obviously that is not the state of 35 law in New York. In Albala v. New York, 54 N.Y.2d 269, 429 N.E.2d 786 (1981) Justice Wachtler wrote: We determined long ago in a case involving policy issues as sensitive as the ones at bar that foreseeability alone is not the hallmark of legal duty for if foreseeability were the sole test we could not logically confine the extension of liability (citations omitted)…. Unlimited hypotheses accompanied by staggering implications are manifest. The perimeters of liability although a proper legislative concern, in cases such as these, cannot be judicially established in a reasonable and practical manner. Id at 273-74. Foreseeability is never enough to create a duty, but at best is a factor in determining the scope of the duty only when the duty already arises from a special relationship. Mr. Justice Wachtler went on to point out that the extension of liability would have the chilling effect of “defensive medicine” prompting doctors to recommend that a patient forego treatment in light of the prospect of liability: Accordingly, society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger. Id at 274. The specter of liability to motorists at large might create a conflict of interest, whereby the physician could not serve two masters. If the duty proposed by plaintiff were to be imposed, physicians would be faced with a choice of depriving a patient who needs the treatment or risking harm to unknown persons. 36 Another conflict arises in terms of confidentiality, since a physician would have no way to defend a motorist’s claim that they committed malpractice upon another driver unless they had the driver’s permission to disclose the details of their confidential medical treatment. It goes without saying in today’s climate that health care costs have become a national concern. The Legislature has not seen fit to pass a statute analogous to the Dram Shop Act, and as discussed above the courts have seen fit to limit the duty of physicians. Again duty is an issue that must be viewed in terms of public policy and not just the facts of a given case: 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. But, absent legislative intervention, the fixing of the "orbit" of duty, as here, in the end is the responsibility of the courts. DeAngelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055 (1983); citing Palsgraf v Long Is. R. R. Co., 248 NY 339, 343, 345, 162 NE 99 (1928). Indeed the court’s role is to limit the extension of duty until the Legislature creates a new remedy. Appellant’s argument concerning safety of the roadway does not overcome the public policy ramifications of the proposed expansion of liability. Whether the claim is framed as a medical malpractice claim or some other novel adaptation of common law negligence, the expansion of a hospital’s duty, based solely on 37 foreseeability, would result in additional litigation that would cause increased malpractice premiums and increased health care costs, if not a reduction in medical services available to the public. Jurists and legislators have long since recognized the importance placed by the Legislature on the potential crisis of rising medical malpractice insurance premiums. Megally, 253 A.D.2d at 42. Now the Court must consider that it would be impossible for physicians, nurses, hospitals, or any other health care provider to obtain liability insurance for such open-ended liability. Point II. Amendment of the complaint would have been futile because re-labeling a malpractice claim as one for general negligence does not avoid dismissal for lack of duty, which is an element of any tort. The trial court suggested that the question of whether a claim sounds in ordinary negligence, or whether it sounds in the more specific category of medical malpractice, is tested by examining the negligent act or omission. If the conduct at issue constitutes - or at least bears a substantial relationship to - the rendition of medical treatment then the complaint sounds in medical malpractice. Without specifically declaring that the proposed amended complaint sounded in medical malpractice, the Supreme Court properly denied the motion to amend because neither the original complaint nor the proposed amended complaint made out a duty on the part of the defendants running to the non-patient plaintiff. 38 Over the years, the courts have developed a series of tools to test whether a case sounds in medical malpractice. These decisions arise in many different contexts because there are many different procedural and substantive rules applicable to medical, dental, or podiatric malpractice actions.2 Initially approaching the analysis from the view of who they are and what they do (long since answering the question of whether nurses can be held liable for malpractice rather than just doctors), the analysis has progressed to what kind of knowledge or judgment is necessary on the part of the defendant, the test has been narrowed to examination of the context of the alleged acts or omissions. As discussed below, the best test is whether the allegations relate to the provision of medical treatment. 2 Many of these special provisions were brought about as part of the Medical Malpractice Reform Act (L 1985, ch 294). Not only is the statute of limitations under CPLR 214-a different for malpractice actions, there are also special tolls for discovery of foreign bodies, as well as for continuous treatment, both of which operate only in malpractice cases under CPLR 214-a. The toll of the limitation of actions for infancy operates differently under CPLR 208. A separate certificate of merit is required as a condition precedent to commencing a malpractice action, required by CPLR 3012-a. Plaintiffs are prohibited by CPLR 3017 from including an ad damnum clause in medical malpractice complaints. Matters cannot proceed to a preliminary conference unless plaintiff serves and files a notice of medical malpractice action within sixty days of joinder of issue as required by CPLR 3406(a). Expert’s names are protected from disclosure under CPLR 3101(d)(1). At trial the plaintiff must introduce competent expert opinion evidence as to the standard of care, departures, and causation. The qualitative insufficiency of informed consent must be established by expert testimony under CPLR 4401-a. The special verdict sheet is different under CPLR 4111(d) and the pattern jury charges are different, e.g. PJI 2:151(A)(2) instead of 2:301. Judgments are structured differently under CPLR Article 50-A. The contingency fee to attorneys is limited on a sliding scale under §474-a of the Judiciary Law rather than rather than a negligence fee schedule pursuant to 22 NYCRR 691.20 (e). It would be unfair if plaintiff could avoid all of these substantive and procedural rules just by re-casting a malpractice action as one for “general negligence.” 39 Taken by any of these analyses, the case at bar sounds in medical malpractice. First, the allegations bear on the exercise of medical judgment by health care professionals, for instance by nurses or other staff separate and apart from the doctors’ orders. Alaggia v. North Shore Univ. Hosp., 92 A.D.2d 532 (2nd Dept. 1983). Second, the case sounds in malpractice where the alleged acts or omissions “either constitute medical treatment or bear a substantial relationship to the rendition of medical treatment.” Barresi v. State of New York, 232 A.D.2d 962 (3rd Dept. 1996); citing Scott v. Ujanov, 74 N.Y.2d 673, 541 N.E.2d 398 (1989); quoting Bleilar v. Bodnar, 65 N.Y.2d 65, 479 N.E.2d 230 (1985). Third, they are claims that cannot be assessed using the common every day experience of the jurors, but rather requires an understanding of medical science or art requiring special skills not ordinarily possessed by lay persons. Barresi, supra; Papa v. Brunswick Gen’l Hosp., 132 A.D.2d 601 (2nd Dept. 1987). The test of whether or not expert testimony is required may have been adequate in some cases, for instance Borillo v. Beekman Downtown Hosp., 146 A.D.2d 734, 735 (2nd Dept. 1989), which dealt with the outdated procedure of presenting to a medical malpractice panel before placing a matter on the trial calendar. Clearly where the conduct requires the exercise of medical judgment, for instance in determining the level of supervision necessary for a psychiatric patient, the matter sounds in malpractice and not ordinary negligence. Amadon v. State of New York, 149 40 Misc.2d 383 (Ct. Claims 1990). However the definition of malpractice goes beyond the exercise of medical judgment. The more cogent approach does not concentrate on the credentials of the caregiver, nor does the question turn on whether expert knowledge of medical arts is involved. Cases have been seen to sound in malpractice even if the act or omission in question did not involve the exercise of medical judgment. For instance, in Collins v. New York Hosp., 49 N.Y.2d 965, 406 N.E.3d 743 (1980); reargument denied 50 N.Y.2d 929, 409 N.E.2d 1016 (1980), the failure to perform a procedure or test that was ordered by a physician was evidence of malpractice even though it did not involve the independent exercise of medical judgment. Indeed the modern view by the Courts is more expansive and understanding that many different activities must be undertaken in the therapeutic environment. In Pacio v. Franklin Hosp., 63 A.D.3d 1130, (2nd Dept. 2009); affirming , Slip Op. 31702(U); 2008 WL 2563497, Index No. 9041-2006 (Supreme Court, Nassau County, June 10, 2008)(Feinman, J.), the Court rejected plaintiff’s attempts to couch their theories as ordinary negligence where they sought to recover for the alleged failure to implement, follow, or carry out a protocol and plan that was already in place for the patient’s care and treatment. In Pacio the plaintiff alleged that the defendant hospital allowed his decubitus ulcer to deteriorate, or caused another one in the same area, and allowed other pressure ulcers to form. There the 41 plaintiff conceded that the evaluation of the patient’s needs and the orders for a plan of treatment were carried out as medical functions, but unsuccessfully tried to argue that it was ordinary negligence to fail to carry out the skin care plan or protocol. The allegation in Pacio was that the defendant hospital failed to follow its own protocols. The claim of “failing to implement protocol” was transparent, and in examining the reality of the action and not its mere name, the court found the essence of the claim was a challenge to the adequacy and timeliness of the rendering of medical treatment, and therefore a medical malpractice claim3. Id, citing Tighe v. Ginsberg, 146 A.D.2d 268 (4th Dept. 1989). In Tenuto, 90 N.Y.2d 606, the Court of Appeals distinguished the malpractice claim, a specialized form of negligence, from the statutory claim for lack of informed consent under Public Health Law § 2805-d; however contrary to appellant’s assertion the Court of Appeals did not recognize any separate, non- malpractice, theory of recovery in negligence. Id at 611-612. Plaintiff’s reliance on Bazakos v. Lewis, 12 N.Y.3d 631, 911 N.E.2d 847 (2009) is misplaced since that case applied the shortened medical malpractice statute of limitations to a claim against a physician performing an independent medical examination. The court held that, despite the “limited” (not absent) 3 The court also found that allegations concerning training, education, supervision of hospital staff is still a claim for medical malpractice, not ordinary negligence. Pacio, 63 A.D.3d at 1133, citing Bleilar, 65N.Y.2d at 72.. 42 physician-patient relationship there was a duty, running only to the person who was being examined, not to affirmatively cause harm to that person. The complaint in Bazakos alleged that Lewis injured Bazakos during the IME when he “took plaintiff’s head in his hands and forcefully rotated it while simultaneously pulling.″Id at 633, 911 N.E.2d at 848. It was the alleged failure of the doctor to exercise specialized skill that characterized the complaint as one sounding in medical malpractice. Id at 634, 911 N.E.2d at 848. The Court of Appeals recognized that limitation on liability of health care providers met the public policy behind the 1975 remedial legislation shortening the statute of limitations for medical malpractice actions, passed in 1975 in response “to a crisis in the medical profession posed by the withdrawal and threatened withdrawal of insurance companies from the malpractice insurance market.” Id, citing Bleilar, 65 N.Y.2d 65. The distinction suggested by the dissent in Bazakos, arguing there had been an examination without “treatment,” was rejected by the majority and has no applicability to the case at bar. Id. Indeed, the question on this appeal is one of duty; there can be no dispute that the allegations relate to the diagnosis and treatment of Lorraine Walsh and as such Davis’s complaint sounds in medical malpractice. In fact there is no legitimate reason to invent a “garden-variety” negligence claim. There can be no tort claim if there is no duty. In other words, the result 43 dictated by cases such as McNulty, whereby a physician’s duty does not extend to non-patients, cannot be avoided by characterizing the action as ordinary negligence rather than one for medical malpractice. Candelario v. Teperman, 15 A.D.3d 204, 205 (1st Dept. 2005). For that reason the Supreme Court properly denied the cross motion for leave to amend the complaint. Plaintiff cannot change the legal analysis of duty simply by virtue of their attempt to characterize a malpractice action as one sounding in ordinary negligence. Spina v. Jack D. Weiler Hosp. of Albert Einstein Coll. of Med., 28 A.D.3d 311, 312 (1st Dept. 2006). Where there is a lack of physician-patient relationship, “A plaintiff cannot circumvent dismissal under McNulty, by characterizing her cause of action as one for ordinary negligence, rather than one for medical malpractice.” Urciuoli v. Lawrence Hosp. Ctr., 89 A.D.3d 533, 534 (1st Dept. 2011). The trial court properly denied the motion for leave to amend the complaint since the amendment contained nothing more than a malpractice action in sheep’s clothing, and thus proposed amendment re-casting the claim as some sort of negligence action would have been futile. Gitlin v. Chirinkin, 60 A.D.3d 901 (2nd Dept. 2009). Another view urged by the defendants is that the original claims are without merit in the absence of a physician-patient relationship, and therefore there can be no relation-back to a nullity. As an analogy, if dismissal were granted for failure to 44 state a cause of action, it would be on the merits and plaintiff would not be afforded any opportunity to re-plead in a new action since CPLR 205(a) would not be triggered. Another reason that the proposed amendment would not relate back to the earlier complaint, is the new theory would have to be predicated on facts that are not alleged in the original complaint, facts that Davis would have to argue exist to establish authority to control Walsh. In another attempted procedural maneuver, Davis also sought to consolidate his failed action against the hospital with his motor-vehicle accident claim against Walsh. Markedly different causation issues make the apportionment of culpability relative to each plaintiff’s alleged injuries unwieldy at best, and it was well within the trial court’s sound discretion to deny consolidation. In any event consolidation is a moot question since Davis’s claims against the respondents were properly dismissed. Since the court below never reached the issue of consolidation, and since it involves an exercise of discretion and not a question of law, the question is not necessary to be addressed on this appeal. CONCLUSION Courts in the State of New York have not recognized a duty on the part of physicians running to motorists at large, and indeed precedent has been set only in 45 exceptionally limited circumstances for any extension of medical malpractice liability beyond the physician-patient relationship. Claims by immediate family members known to the doctor have been rejected, and there is no way to predict or control the number of possible claimants that a doctor would face if a duty were created to the general motoring public. The specter of such liability would not only result in defensive medicine, but would also create a conflict of interest whereby a physician would have to choose against providing treatment that is beneficial to a patient in order to meet the newly created burden to the public at large. The physician would likewise be required to breach patient confidentiality in order to establish the propriety of his or her treatment in defense of claims by non-patients. The increased financial burden on hospitals and doctors would have far-reaching impacts in terms of rising costs of liability insurance and healthcare at a time when rising malpractice insurance premiums are an issue in this state, and when affordable health care has been declared a national priority. Davis cannot sue the hospital or physicians who treated Walsh, since there was no physician patient relationship. There was no privity, and there was no special relationship. Defendant had neither the power nor the duty to control the patient, and certainly did not launch her as an instrumentality of harm. The Appellate Division’s order affirming the judgment and order of the Supreme Court, granting defendants’ motion to dismiss for failure to state a cause 46 47 of action, and denying plaintiff’s cross motion to amend the complaint to add common law negligence claims instead of malpractice claims, and denying the motion for consolidation, should be affirmed in all respects. Respectfully submitted, Mineola, New York January 29, 2015 BARTLETT, McDONOUGH & MONAGHAN by /S/ ROBERT G. VIZZA ROBERT G. VIZZA Attorneys for Defendant-Appellant SOUTH NASSAU COMMUNITIES HOSPITAL 170 Old Country Road Mineola New York, 11501 (516) 877-2900