Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.BriefN.Y.October 15, 2015 Submitted Without Request For Oral Argument 1141946v.1 APL-2014-00245 Appellate Division Docket Nos. 2012-08057 & 2012-10997 Nassau County Clerk’s Index Nos. 01834/2011, 023966/2009 & 08405/2009 Court of Appeals of the State of New York 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 OF AMICUS CURIAE HEALTHCARE ASSOCIATION OF NEW YORK STATE JAMES A. SHANNON Of Counsel Dated: May 15, 2015 Wilson Elser Moskowitz Edelman & Dicker LLP Attorneys for Amicus Curiae 677 Broadway, Floor 9 Albany, NY 12207 Tel.: (518) 449-8893 Fax: (518) 449-4292 1141946v.1 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. i 1141946v.1 CORPORATE DISCLOSURE STATEMENT Pursuant to 22 N.Y.C.R.R. 500.1(f), Amicus Healthcare Association of New York State submits the following Corporate Disclosure Statement: The Healthcare Association of New York State, Inc. is a domestic not-for-profit corporation with no parent entity, but with the following subsidiaries and affiliates: Subsidiaries: (i) HANYS Services, Inc. d/b/a HANYS Solutions; (ii) DataGen, Inc.; (iii) HANYS Group Purchasing Services, Inc.; (iv) Group Insurance Agency, Inc. d/b/a HANYS Benefit Services; and (v) Healthcare Community Securities Corporation, Inc. Affiliates: (i) Healthcare Research and Educational Fund, Inc.; and (ii) the Western New York Healthcare Association, Inc. ii 1141946v.1 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 2 ARGUMENT ............................................................................................................. 3 POINT I PLAINTIFFS’ DUTY OF CARE TEST IS BOTH CONTRARY TO EXISTING PRECEDENT AND IMPROVIDENT ......................................................................... 3 POINT II IMPOSING A DUTY ON THE HEALTH CARE PROVIDERS TO THE GENERAL PUBLIC WOULD UNDERMINE IMPORTANT PUBLIC POLICY CONSIDERATIONS ................................................................ 10 CONCLUSION ........................................................................................................ 16 1141946v.1 iii TABLE OF AUTHORITIES Page(s) Cases Cartier v. Long Island College Hospital, 111 A.D.2d 894 (2d Dept. 1985) ............................................................................ 4 Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990) ............................................................................................... 5 Eiseman v. State, 70 N.Y.2d 175, 187 (1987) ...................................................................................10 Fazzolari v. Portland School Dist. No. 1J, 303 Ore. 1, 734 P.2d 1326 (1987) ........................................................................10 Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990) ............................................................................................. 5 Gladitsch v. Core, Sup. Ct., Nassau Co., December 3, 2014, Brandveen J., Index No, 10166/12, Exhibit A ............................................................................................... 7 Grace Plaza v. Elbaum, 82 N.Y.2d 10 (1993) ............................................................................................... 5 Harland v. State of California, 75 Cal. App. 3d 475, 142 Cal. Rptr. 201 (1977) .................................................... 4 In re Storar, 52 N.Y.2d 363 (1981) ............................................................................................. 5 In re Westchester County Med. Ctr. Ex rel. O'Connor, 72 N.Y.2d 517 (1988) ............................................................................................. 5 Kowalski v. St. Francis Hosp. & Health Ctrs., 95 A.D.3d 834 (2d Dept. 2012) ..........................................................................6, 8 Lauer v. City of New York, 95 N.Y.2d 95 (2000) .............................................................................................10 1141946v.1 iv Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914 (2d Dept. 2013) ............................................................................ 8 Megally v. Laprota, 253 A.D.2d 35 (2d Dept. 1998) ............................................................................10 Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1 (1988) .............................................................................................4, 8 Rivers v. Katz, 67 N.Y.2d 485 (1986) ............................................................................................. 5 Schloendorff v. Society of N. Y. Hosp., 211 N.Y. 125 (1914) ............................................................................................... 5 Tobin v. Grossman, 24 N.Y.2d 609 (1969) ...........................................................................................10 Trombetta v. Conkling, 82 N.Y.2d 549 (1993) ...........................................................................................10 Waters v. New York City Hous. Auth., 69 N.Y.2d 225 (1987) ...........................................................................................10 Wood v. Strong Mem’l Hosp. of Univ. of Rochester, 273 A.D.2d 929 (4th Dept. 2000) ........................................................................... 6 Statutes 42 U.S.C. § 1395i-4(c)(2)(B) ...................................................................................15 42 U.S.C. § 1395ww(d)(5)(D)(iii) ...........................................................................15 N.Y. Insurance Law § 311(4) .................................................................................... 3 N.Y. Public Health Law § 2801(10) .......................................................................... 4 N.Y. Public Health Law § 2803-c (3)(a) ................................................................... 4 N.Y. Public Health Law § 2803-c (3)(h) ................................................................... 4 1141946v.1 v Regulations 10 N.Y.C.R.R. § 405.7(b)(5) ..................................................................................... 4 10 N.Y.C.R.R. § 405.7(c)(10) .................................................................................... 5 10 N.Y.C.R.R. § 414.14 (a)(19) ................................................................................. 4 11 N.Y.C.R.R. § 60-1.1(a) ......................................................................................... 3 42 C.F.R. § 483.12(b)(2) ............................................................................................ 5 42 C.F.R. § 483.12(e) ................................................................................................. 4 42 C.F.R. § 489.24(d)(3) ............................................................................................ 6 Other Authorities Announcement of Availability of Funding, Department of Health, https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/vapap/app lication_instructions_certification.htm .................................................................14 Audit Report# 2012-S-72, January 2013 Report of the New York State Office of the Comptroller, State University of New York Downstate Medical Center University Hospital of Brooklyn, http://www.osc.state.ny.us/audits/allaudits/093013/12s72.pdf ............................13 Commission Report, The New York State Commission on Health Care Facilities in the 21st Century, http://www.nyhealthcarecommission.org/docs/final/commissionfinalreport .pdf ........................................................................................................................12 IAAF Applicant Information, Department of Health, http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/index.htm ..........15 1141946v.1 vi IAAF Award Announcement, Department of Health, http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/iaaf_awards. htm ........................................................................................................................14 IAAF Frequently Asked Questions and Answers, Department of Health, http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/iaaf_awards. htm ........................................................................................................................14 New York City Hospitals’ Finances Improve Overall in 2009, but Many Struggle to Survive, The United Hospital Fund February 2011 Report, http://www.uhfnyc.org/assets/884 ........................................................................12 1 1141946v.1 PRELIMINARY STATEMENT (INTEREST OF THE AMICUS) The Healthcare Association of New York State (“HANYS”) is New York’s statewide trade association representing the interests of over 200 not-for-profit voluntary or public hospitals, as well as over 200 other not-for-profit health care providers in New York State. With a mission of advancing “the health of individuals and communities by providing leadership, representation, and service to health providers and systems across the entire continuum of care,” HANYS provides technical, administrative, advocacy, legal and other services for its members and frequently advocates on behalf of its members by litigating issues of common concern in State and Federal courts. HANYS has filed numerous amicus briefs with respect to issues important to its membership. With respect to the present litigation, HANYS submits this amicus brief in order to emphasize the serious impact the reversal of the Appellate Division’s decision and adoption of the Plaintiff-Appellant’s (“Plaintiffs”) position in this case could have upon every single one of HANYS’ hospital members. Plaintiffs ask this Court to imprudently expand the potential sphere of liability beyond the patient receiving treatment to a virtually boundless number of third parties. Plaintiffs would have this Court sacrifice the established duty of care analysis for the expedient purpose reaching potential defendants with “deep pockets.” 1141946v.1 2 Obviously hoping quantity will prevail, Plaintiffs devote 173 pages in their main and reply briefs detailing numerous arguments to see if something will stick. HANYS wholeheartedly supports the arguments put forth by Defendants regarding all of those arguments, but in recognition of the Court’s valuable time HANYS will refrain from attempting to address each and every issue raised by Plaintiffs. Simply put, the lower court and the Appellate Division, Second Department, rightly rejected the notion that Plaintiffs’ scheme is supported by the law, practicable or wise. STATEMENT OF FACTS HANYS respectfully refers the Court to the principal briefs of Defendants- Respondents Regina Hammock, D.O., Christine DeLuca, RPA-C and Island Medical Physicians, P.C. (hereinafter “Def. Practitioner Brief”) and Defendant- Respondent South Nassau Communities Hospital (hereinafter “Def. Hosp. Brief”) (collectively “Defendants”) for the statement of facts relevant to this appeal. 1141946v.1 3 ARGUMENT POINT I PLAINTIFFS’ DUTY OF CARE TEST IS BOTH CONTRARY TO EXISTING PRECEDENT AND IMPROVIDENT Plaintiffs create the impression that this Court must recognize a cause of action in this case to fill a gap in tort law that, if left unaddressed, will leave health care providers “immune from liability” [Pl. Reply Brief, p. 34], allowing physicians to wheel patients directly from surgery to the hospital exit [Pl. Brief, p. 26], promoting a “radical, anti-victim view” [Pl. Brief, p. 85] and furthering the “onslaught of drug impaired driving.” Pl. Brief, p.102. That is, of course, a gross exaggeration. Health care providers remain answerable for their acts or omissions through potential liability to patients via medical malpractice claims, such as those interposed by Plaintiff-Respondent Lorraine Walsh-Roman (“Resp. Walsh”) in this instance against all of the Defendants [R.4, fn 1]. Rather, Plaintiffs tip their hand when they point out that New York’s minimum personal injury automobile coverage is a modest $25,000 [Ins. Law § 311(4); 11 NYCRR § 60-1.1(a)], while Defendants carry malpractice insurance “in the millions.” Pl. Reply Brief, p. 5. Recognizing the futility of challenging what they consider to be an inadequate statutory requirement, Plaintiffs ask this Court to facilitate their desire to reach the deep pockets by, in effect, judicially legislating a remedy via an extension of a 1141946v.1 4 health care provider’s duty of care to the general public. This Court has steadfastly refused to do this in the past and should refrain from doing so here. In the seminal case of Purdy v. Public Adm’r of County of Westchester, 72 N.Y.2d 1, 9 (1988), this Court noted that “no provision of the Public Health Law or regulation governing health-related facilities [ ] either authorizes or requires defendants to prevent [the patient] … from leaving the premises or to control her conduct while she is off the premises.” The decision then explained: Indeed, the statute and regulations provide for just the opposite -- the right of the voluntary resident to make independent personal decisions (10 NYCRR 414.14 [a] [19]), the right to exercise civil and religious liberties (Public Health Law § 2803- c [3] [a]), and the right to be free from physical restraint, except where emergency dictates otherwise (Public Health Law § 2803-c [3] [h]; see, e.g., Cartier v Long Is. Coll. Hosp., 111 AD2d 894; Harland v State of California, 75 Cal App 3d 475, 142 Cal Rptr 201, 205). Purdy, 72 N.Y.2d at 9. There is no meaningful distinction between the health-related facility in Purdy and South Nassau Community Hospital, i.e. a general hospital under Public Health Law § 2801(10), in the present case. 10 N.Y.C.R.R. § 405.7(b)(5) provides in relevant part that a hospital shall limit the use of physical restraints. 42 C.F.R. § 483.12(e), which is applicable to South Nassau Community Hospital as a Medicare and Medicaid provider, similarly requires that “[a]ll patients have the right to be free from restraint … [unless] 1141946v.1 5 imposed to ensure the immediate physical safety of the patient, a staff member, or others and must be discontinued at the earliest possible time.” On a related issue, “New York law has long recognized the right of competent individuals to decide what happens to their bodies (Schloendorff v Society of N. Y. Hosp., 211 N.Y. 125, 105 N.E. 92).” Grace Plaza v Elbaum, 82 N.Y.2d 10, 15 (1993). The Grace Plaza Court went on to further hold: That right to personal autonomy is rooted not only in common law but also in the Constitution (Cruzan v Director, Mo. Dept. of Health, 497 U.S. 261, 278-279; Rivers v Katz, 67 N.Y.2d 485, 493, 504 N.Y.S.2d 74, 495 N.E.2d 337) and includes the right to decline even life-preserving treatment (Fosmire v Nicoleau, 75 N.Y.2d 218, 226, 551 N.Y.S.2d 876, 551 N.E.2d 77; Matter of Westchester County Med. Ctr. [O’Connor], supra; Matter of Eichner [Matter of Storar], 52 N.Y.2d 363, supra). 82 N.Y.2d at 15. A natural extension of the foregoing personal autonomy is found in 10 N.Y.C.R.R. § 405.7(c)(10), which provides that a “hospital shall afford to each patient the right to … refuse treatment to the extent permitted by law and to be informed of the reasonably foreseeable consequences of such refusal.”); see also, 42 C.F.R. § 483.12(b)(2)(“… The patient’s rights include … being able to request or refuse treatment.”) Indeed, even the Emergency Medical Treatment and Labor Act (commonly referred to as EMTALA) enshrines a patient’s right to refuse 1141946v.1 6 treatment at 42 C.F.R. § 489.24(d)(3). That provision states that a hospital is in compliance with regulatory requirements if it offers treatment, “but the individual (or a person acting on the individual’s behalf) does not consent to the examination or treatment.” Id. As previously mentioned, Plaintiffs posit that an affirmance in this case would sanction a hospital discharging a patient right after surgery. Pl. Brief, p. 26. Plaintiffs fail to appreciate that case law on this very topic, but turned on its head, undercuts their position. In Wood v Strong Mem’l Hosp. of Univ. of Rochester, 273 A.D.2d 929, 930 (4th Dept. 2000), a patient was warned against walking and smoking after surgery, but still attempted to leave the hospital after neck fusion surgery to have a cigarette. Hospital security personnel attempted to physically restrain the patient from leaving, breaking his thumb in the process. Id. The Appellate Division, Fourth Department, unanimously affirmed the judgment below finding the hospital liable and, apparently, the imposition of punitive damages. Id. at 929-930; see also, Kowalski v. St. Francis Hosp. & Health Ctrs., 95 AD3d 834 (2d Dept. 2012)(hospital had no legal authority to confine a patient who voluntarily presented himself for treatment, but left while still impaired). This case simply reaffirms the principles set forth in the parties briefs that there is no legal authority that would have empowered South Nassau Community Hospital to control Resp. 1141946v.1 7 Walsh, notwithstanding Plaintiffs self-serving assertion that it took “charge of Ms. Walsh’s person, and her mind.” Pl. Brief, p. 8. Plaintiffs make the inventive argument that the lack of legal control is not dispositive, because Resp. Walsh voluntarily submitted to treatment and “would have done anything they told her to do.” Pl. Brief, p. 23. Indeed, Plaintiffs propose that “[t]he level of submissiveness - or level of defiance - of a patient goes to the heart of what is pivotal in assessing the doctrine’s intended application.” Pl. Brief, p. 25. The Defendant Practitioners accurately note that proving or disproving this would be “unseemly, unwieldy, and probably futile.” Def. Practitioner Brief, p. 24. That appears to put it mildly. Would the level of defiance be judged by a patient’s verbal responses, actions or both? Are a patient’s attitude and mannerisms also taken into account? Would a patient who refuses to comply with a recommendation, such as declining to undergo a recommended diagnostic test, demonstrate that he or she is defiant, and thus not under a hospital’s control for purposes of Plaintiffs proposed test, or does the refusal have to relate to the alleged hazardous act? In Gladitsch v. Core, the Supreme Court, Nassau County, rendered a Short Form Order dated December 3, 2014, a copy of which is annexed hereto as 1141946v.1 8 Exhibit A 1 , addressing a situation similar to Kowalski, supra, in that it involved an inebriated individual who presented to the Nassau University Medical Center, left and was then struck by a motor vehicle. The difference, however, is that in Gladitsch the Defendant motor vehicle operator and his employer, the Town of Hempstead, brought a third-party action against the hospital alleging negligence and medical malpractice based primarily on the hospital’s failure to detain the patient. Exh. A, pp. 2-3. It is notable that while the individual was already inebriated when he arrived at the hospital, he was also administered Ativan [Exh. A, p. 6], thus considerably muddying the waters with respect to Plaintiffs arguments regarding “active forces,” causing the peril and “the launching of harm doctrine.” Pl. Brief, pp. 42-44. The Supreme Court ultimately followed this Court’s holdings in Kowalski and Purdy, supra, as well as the Appellate Division decision in Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914, 915-916 (2d Dept. 2013) to hold that the duty of care did not extend to the Town or the driver of the vehicle. Exh. A, pp. 7-8. Presumably Plaintiffs will attempt to distinguish this case based on the fact that the patient therein “slipped out unseen” [Id. at p. 6], or in other words was defiant, but maybe not given Plaintiffs argument 1 Retrieved May 8, 2015 from: http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/index_new/brandveen/2014dec/ 010166-12.pdf. 1141946v.1 9 that someone with any degree of impairment is incapable of making a decision and physicians then have a fiduciary duty to control them. Pl. Brief, pp. 40, 68 & 71. Plaintiffs are asking this Court to open a Pandora’s Box if it adopts their line of reasoning, especially in light of their proposition to essentially extend a duty of care to the general public. This Court should reject Plaintiffs improvident suggestions and adhere to existing precedent, which has established reasonable and practicable boundaries for imposing a duty of care based on the authority to legally control another individual. 1141946v.1 10 POINT II IMPOSING A DUTY ON THE HEALTH CARE PROVIDERS TO THE GENERAL PUBLIC WOULD UNDERMINE IMPORTANT PUBLIC POLICY CONSIDERATIONS As this Court held in Eiseman v. State, 70 N.Y.2d 175, 187 (1987), “… 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’ (Waters v New York City Hous. Auth., 69 NY2d 225, 229, quoting Tobin v Grossman, 24 NY2d 609, 619; see also, Fazzolari v Portland School Dist. No. 1J, 303 Ore 1, 734 P2d 1326 [Linde, J.]).” Defendants cite to a number of other decisions from this Court also expressing extreme caution when considering the orbit of potential liability. Def. Practitioners Brief, pp. 42-43 (citing Trombetta v. Conkling, 82 N.Y.2d 549 (1993)); Def. Hosp. Brief, pp. 32-33 (citing Lauer v. City of New York, 95 N.Y.2d 95 (2000) and Megally v. Laprota, 253 A.D.2d 35 (2d Dept. 1998)). HANYS wishes to assist the Court by putting Plaintiffs proposed expansion of the duty of care in context. In 2013, the latest year for which such data 2 is available, New York State hospitals had total outpatient discharges of 48,055,274, of which 6,827,464 were discharges from an emergency department. In addition, 2 Source is the Statewide Planning and Research Cooperative System. 1141946v.1 11 during that same year hospitals had total inpatient discharges of 2,465,936; while the data does not give specifics, some portion of these inpatients were admitted through the emergency department. Given the facts of this case Plaintiffs understandably focus on emergency departments, but there doesn’t appear to be any meaningful legal distinction to be drawn from the administration of medications in the emergency department and those given in a variety of other settings. For example, patients are routinely administered controlled medications in connection with outpatient surgical or diagnostic procedures (e.g. propofol for a colonoscopy). In light of the more that fifty million hospital discharges per year and the proximity of the 200 plus hospitals throughout the state 3 , the number of individuals in the general public to whom health care providers may potentially owe a duty of care to under Plaintiffs’ theory would, for all intents and purposes, be so numerous as to be incalculable. One does not have to be prescient to comprehend the burden this will pose for the court system and the health care system, including HANYS hospital members. Plaintiffs scoff at the potential impact of their proposals on medical malpractice insurance rates and costs associated with defensive medicine. Pl. Brief, p. 104; Pl. Reply Brief, pp. 47-49; Plaintiffs Response to Amici Medical Society of the State of New York and American Medical Association, pp. 1-8. While 3 Attached as Exhibit B is a map showing the geographical locations of the hospitals across the State. 1141946v.1 12 Plaintiffs attempt to convince this Court that the financial impact of their proposed test on health care practitioners will be negligible, it is telling that Plaintiffs do not address the potential effect on the financial well being of hospitals in this State. Plaintiffs likely realize that a significant number of New York State hospitals have been in financial jeopardy for many years. The New York State Commission on Health Care Facilities in the 21st Century report indicated that 70 hospitals had closed in New York State between 1983-2006, including 34 hospitals between 1994-2006. 4 The Commission also reports: According to the Healthcare Association of New York State (HANYS), hospitals in New York State have lost an aggregate $2.4 billion over the past eight years. In 2005 alone, the statewide operating margin, which is the traditional measure of hospitals’ financial health, was -0.2% (-$95.4 million). While some hospitals are on relatively solid financial ground, the majority are losing money, just breaking even, or operating with a 0-1% financial margin. Commission Report, p. 29. Nor has the outlook improved since the Commission issued its’ report. The United Hospital Fund February 2011 report entitled “New York City Hospitals’ Finances Improve Overall in 2009, but Many Struggle to Survive,” 5 states: 4 See page 20 of the full report, located at: http://www.nyhealthcarecommission.org/docs/final/commissionfinalreport.pdf. 5 See page 1 of the report, located at: http://www.uhfnyc.org/assets/884. 1141946v.1 13 The industry was divided between hospitals that were financially stable (led by academic medical centers) and those that were struggling (primarily small hospitals and safety net hospitals). … In this report, covering the period from 2006 through 2009, we find a small improvement in the financial condition of the city’s hospitals in the aggregate, but a continuation of the divergent trends previously described. Six additional hospitals closed during this period (with two more hospitals closing in 2010), and nearly one-third of those remaining are still in jeopardy. In its most recent testimony to the Joint Legislative Hearing of the Senate Finance and Assembly Ways and Means Committees, HANYS reported that hospital operating margins in New York State are barely break-even, at 0.22% in 2013, that New York hospital operating margins are the third worst in the country and that nearly three-quarters of New York’s hospitals are in fair or poor financial condition according to the NYS Financial Strength Index (i.e. a composite measure of financial indicators). 6 Lest Plaintiffs argue these sources of data are biased in any way, one only need look to the January 2013 report of the New York State Office of the Comptroller regarding the State University of New York Downstate Medical Center University Hospital of Brooklyn, 7 for corroboration. The report identified two of its key findings as “[t]he Hospital is facing potential insolvency 6 See pages 3-4 of the testimony, located at: http://www.hanys.org/advocacy/state/2015/2015- 2016_budget_testimony.pdf. 7 Report# 2012-S-72, located at: http://www.osc.state.ny.us/audits/allaudits/093013/12s72.pdf. 1141946v.1 14 within a matter of months … [and] [t]he Hospital has experienced cash shortfalls averaging nearly $3 million each week.” 8 Another independent indicator regarding the financial health of many New York hospitals are the various programs the State has found it necessary to establish over the last few years to stabilize financially stressed hospitals. Most recently this includes the Vital Access Provider Assurance Program (“VAPAP”), established by Section 6 of Part J of Chapter 60 of the Laws of 2015. This program will distribute up to $245 million “to individual hospitals in severe financial distress to enable these facilities to maintain operations and vital services through March 31, 2016.” 9 This is in addition to the State’s 2014 pledge of $500 million dollars from the Interim Access Assurance Fund (“IAAF”) to 27 safety net hospitals and 5 major public hospital systems. 10 To be eligible for both the VAPAP and IAAF funds, the safety net hospitals could not have more than 15 days’ cash and equivalents, no assets to monetize and no other available resources. 11 Of course, the primary purpose of the State expending these significant amounts of funds is to ensure the continued access for those of the 8 Id. at page 1. 9 See Department of Health announcement of availability of funding, located at: https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/vapap/application_instructions _certification.htm 10 See Department of Health IAAF award announcement, located at: http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/iaaf_awards.htm 11 Id. fn. 9 (VAPAP); see also, Department of Health IAAF frequently asked questions and answers, page 9, located at: http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/iaaf_awards.htm 1141946v.1 15 public who themselves are struggling financially and do not have alternative access to health care. This is reflected in the restriction of such funds to (i) public hospitals; (ii) federally designated Critical Access Hospitals [42 U.S.C. § 1395i- 4(c)(2)(B)]; (iii) federally designated Sole Community Hospitals [42 U.S.C. § 1395ww(d)(5)(D)(iii)]; and (iii) safety net hospitals. 12 Safety net hospitals are defined as general hospitals with at least 30 percent of its inpatient discharges made up of Medicaid eligible individuals, uninsured individuals or Medicaid dually-eligible individuals and with at least 35% of its outpatient visits made up of Medicaid eligible individuals, uninsured individuals or Medicaid dually-eligible individuals; or one that serves at least 30 percent of the residents of a county or a multi-county area who are Medicaid eligible individuals, uninsured individuals or Medicaid dually- eligible individuals. 13 The point of the foregoing is simple, that extending a health care provider’s duty of care to the general public may very well cause serious and widespread adverse consequences to the public through additional hospital closures or by further depleting the resources of hospitals already in financial distress. For this reason, HANYS respectfully suggests that the public policy concerns weigh in favor of rejecting Plaintiffs arguments in this case. 12 Id. fn. 9 (VAPAP); see also, Department of Health IAAF applicant information, located at: http://www.health.ny.gov/health_care/medicaid/redesign/iaaf/index.htm 13 Id. 1141946v.1 16 CONCLUSION For all of the foregoing reasons, HANYS urges the Court to affirm the unanimous decision of the Appellate Division, Second Department. Dated: Albany, New York May 15, 2015 Respectfully submitted, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP By: James A. Shannon Attorneys for Amicus Curiae Healthcare Association of New York State 677 Broadway, Floor 9 Albany, New York 12207-2989 (518) 449-8893 Exhibit A S SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN J. S. C. KIM GLADITSCH, AS ADMINISTRATRIX OF THE ESTATE OF EDDIE A. COTTO, DECEASED, Plaintiff, - against - TRIAL / 1AS PART 32 NASSAU COUNTY Action No. 1 Index No. 10166/12 Motion Sequence No. 003 ROBERT W. CORE and THE TOWN OF HEMPSTEAD, Defendant. ROBERT W. CORE and THE TOWN OF HEMPSTEAD, Third Party Plaintiff, - against - NASSAU UNIVERSITY MEDICAL CENTER, Third Party Defendant. The following papers having been read on this motion: Notice of Motion, Affidavits, & Exhibits 1 Answering Affidavits 2 Replying Affidavits 3 Briefs: Plaintiff's / Petitioner's Defendant's / Respondent's The third party defendant Nassau University Medical Center moves pursuant to REM - resent: ANTONI I. B ITSCH, I IS zu , l inti f agai t . II }I P , STATE OF I / I A LI I 11 t. . II , rt l i ti , agai t - I.] I I AI , rl t, lo ing i : i i , fr t xhibits . . I ring fi i . eplyingAffidavits... .." l i tiff s ti i ' t's P t's l CPLR 2221(d) and (3) seeking leave to renew and reargue a court order dated July 1, 2014. The Nassau University Medical Center contends the Court overlooked or misapprehended matters of fact and law in deciding its prior motion for dismissal of the third party complaint and any cross claims pursuant to CPLR 3211(a)(7). The defense points to a recent State Court of Appeals holding in Kowalski v. St. Francis Hospital & Health Centers, et al., 21 N.Y.3d 480, and an Appellate Division ruling in Ingutti v. Rochester General Hospital, 114 A.D.3d 1302, and where the Fourth Department followed and applied the Kowalski holding. The defense claims the previous motion by Robert W. Core and The Town of Hempstead, the third party plaintiffs sought to strike the answer by the Nassau University Medical Center for failing to provide discovery concerning the demand by Robert W. Core and The Town of Hempstead for the last known address of Richard Park, M.D., a former Emergency Department attending physician. The defense asserts the Nassau University Medical Center provided the attorney for Robert W. Core and The Town of Hempstead with that information, and Dr. Park was deposed pursuant to a subpoena hence Robert W. Core and The Town of Hempstead withdrew their motion by letter dated January 27, 2014. Robert W. Core and The Town of Hempstead oppose this motion. Robert W. Core and The Town of Hempstead contend the case at bar is factually dissimilar to the operative facts of Kowalski and Ingutti where those cases involved injured patients suing Page 2 of 8 L zzl(d) t t l I T i it l t e i re e ded t i i l laint ross lai s pursuant to cPLR 3 . f st t c l l i . s i l lt ce t s L, l llate isi t i i atti l t t l e l ki l i . t . f t , ir fs t t i i i l t r in r,r s r ergency epartment tt ing physician. r i ersity e ical ter id m r t . f st it for ation, s . t t r i ti l t r r w. core pstead pose t is rt w c st i ll i il ti f l i a i i i the hospital unlike here where the third party action is simply a contribution claim by Robert W. Core and The Town of Hempstead. Robert W. Core and The Town of Hempstead assert they allege the facts which fit within a cognizable legal theory negligence and medical malpractice regarding treatment rendered to Eddie A. Cotto, the decedent. The Nassau University Medical Center replies to the opposition by Robert W. Core and The Town of Hempstead. The Nassau University Medical Center argues there was no special nor independent duty owed here to the decedent. The Nassau University Medical Center asserts the opposition's assertion of contribution does not vitate the holding in Kowalski. The Nassau University Medical Center avers a restraint on the decedent on the facts presented would have exposed it to liability for false imprisonment of the decedent. The Nassau University Medical Center argues it did not proximately cause the death of Eddie A. Cotto. The underlying third party action alleges negligence and medical malpractice regarding treatment rendered to Eddie A. Cotto the decedent, during an Emergency Room admission on July 14, 2011. Robert W. Core and The Town of Hempstead allege the Nassau University Medical Center was negligent in allowing the decedent, who presented to the facility to enter an alcohol detoxification program, to leave the hospital without authorization and knowledge of the staff, failing to monitor the decedent while he was in the hospital and failing to restrain the decedent and prevent him from leaving the hospital. Page 3 of 8 i l ike t i l i l i t . re he o n f e pstea . f st t t lege t t it i i l igence l r tice i rn t r i t , . a i it i l t iti r f e . T i it l t r r t i l i de t t ed ere to the de t. i it ic l ter ts t i i ' serti i ti l i K al ki. i it i l t i t ts r ili f i t t. i it i l r i i t r i l ie . l ing r f ti l li i l l ti ing re t ent re t, r i i n , l r w c t l i r it e ic l t r l in t, ilit t t r t ic i ' t ri ti le t f i i i it l lin t l t i ' The defense points to the August28, 2013 deposition testimony of Kimberly Cotto (Galaditsch), the plaintiff administratrix of the estate of Eddie A. Cotto and the October 16, 2013 deposition testimony of Diane Ware detailing certain events of July 14, 2011, before the decedent left the Emergency Room. The defense maintains the decedent left the hospital before he was assigned to a bed in the alcohol detoxification program, and a Town of Hempstead truck driven by Core struck Cotto on Hempstead Turnpike. Core was subsequently convicted of driving under the influence of drug or alcohol, aggravated driving while intoxicated and operating a motor vehicle with .08 of 1% alcohol. The Court now determines there was no cross motion by Robert W. Core and The Town of Hempstead to strike the answer by the Nassau University Medical Center since Robert W. Core and The Town of Hempstead withdrew their motion. The Court also determines the Nassau University Medical Center fulfilled its discovery obligations. Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain "a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . in his or her body" (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person "who comes voluntarily or is brought without his or her objection" to a hospital or other treatment facility (§ 22.09 [d]) and one "who is brought with his or her objection" (§ 22.09 [e]). In the latter case, the person "may be retained for emergency treatment" if he or she is examined by a doctor and found to be incapacitated to such a degree that "there is a likelihood to result in harm to the person or others" (§ 22.09 [e]); a "likelihood to result in harm" to oneself must be "manifested by threats of or attempts at suicide or serious bodily harm or other conduct" that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category-people who, like plaintiff, come to the hospital voluntarily-the Mental Hygiene Law makes no provision for involuntary retention Page 4 of 8 se ints ugust28, iti i , i i t t i i t r i i n t ia ing i l 1 I re t t l t t e r . i i t t l f l re i l ic tion e pstead tr c iven core cot o on Hempstead m i c tl icted luence l g r i ile i t icate i icle it l l l. ines i e pstead e it i l t i t w. core he n e pstead ithdrew their c l ines ass iversity i l il e t ions. iene $ cifi l ress t l " s i i i t ti ll i paired s a res lt of the presence ofalcohol . . . i i e t giene $ . tal t1l). t t l r t l icated s il i t t r ftn t ilit $ ldD i t j ti " $ . lel). t ined r cy i it t there lihood t t e $ [e]); "likelihoo l l ife t f tt t i i r il t lf j ie $ . tal t3l). r t f r tegory-peo le l l i ti ' e it l l tarily-the t l iene t Kowalski v St. Francis Hosp. & Health Ctrs., 21 N.Y.3d supra, at 485-486. The Court further determines the Nassau University Medical Center satisfies its CPLR 2221 burden leave to renew and reargue the July 1, 2014 order. "In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" [citations omitted]" (Paino v Kaieyes Realty, LLC, 115 A.D.3d 656). The Nassau University Medical Center provides proof in admissible form in support of its motion to dismiss the third party complaint pursuant to CPLR 3211(a)(7). Cotto came voluntarily to the Emergency Room on July 14, 2011, and left it. However, this Court considered the third party complaint in the light most favorable to Robert W. Core nor The Town of Hempstead, even as expanded by the evidence submitted by Robert W. Core nor The Town of Hempstead in opposition to the assertions by the Nassau University Medical Center, the third party complaint fails to state a cause of action alleging medical malpractice, since only the decedent, and neither Robert W. Core nor The Town of Hempstead, had a physician-patient relationship with the Nassau University Medical Center, Here, the evidentiary materials submitted by the Nassau University Medical Center show the facts as alleged by Robert W. Core and The Town of Hempstead may not fit within any cognizable legal theory. The medical Page 5 of 8 K l i L rancis os l tr ., . .3 a ' rther it e ic l ti f i rde t l l, ..In i i i t t c 2ll ( ) ..the l t l i ti fi ever le r le er l it it in iza le [citations Realty, , I . . ). T N i it l i i le iss l i cp c n c v l t ri t t uly 14, , r ra le t w. core ste , tte t t i i r i ns t e ass university center, r t l i l i , t, i w. core st , ia -patient ass iversity edical t vi ti r t ri sub i i r it e ic l e pstead t lt ithin izable legal the . i malpractice allegations by Robert W. Core and The Town of Hempstead do not support such a duty of care owed by the Nassau University Medical Center to Robert W. Core and The Town of Hempstead (see Purdy v Public Adm'r of County of Westchester, 72 NY2d 1). In opposition, Robert W. Core and The Town of Hempstead argue Core's conduct does not necessarily sever the casual connection between the alleged negligence of the Nassau University Medical Center and the decedent. Robert W. Core and The Town of Hempstead assert liability turns upon whether the intervening act was a normal or foreseeable consequence of the circumstances created by acts or omissions of the Nassau University Medical Center. Robert W. Core and The Town of Hempstead note the decedent entered the alcohol detoxification facility in an intoxicated state, sought admission there where he was seen by a doctor who determined the decedent was a "flight risk" apparently due to his behavior while there. Robert W. Core and The Town of Hempstead remark a facility administered Ativan, a sedative, and a patient care assistant was assigned to the decedent, but the decedent attempted to leave and was persuaded to stay nevertheless he still slipped out unseen, and was struck by the vehicle moments after leaving the hospital. Robert W. Core and The Town of Hempstead point to Dr. Park's March 11, 2014 deposition where the physician stated the decedent was in danger to himself and unable to make a rational decision. Robert W. Core and The Town of Hempstead aver the Nassau University Medical Center failed to restrain the decedent Page 6 of 8 l ti ll ti s w. cor t t u iver it ce t w' c ste Pur v Pu li ' f c f ly t t r,T l i ion, t w. cor e pstead core' t rily l ti t e ll l iversity edical center d the t. w c f t t i ilit m t i t l l stances t i iversity edical ste t € t red t}l l l ific tio ilit ic t t i i re her i t fli t tly ue to is ior hile ther f t ilit i ist tivan, ti , r i t t t t, t te t theless li , t i f l ing t e it l. t w c pstead t . ' iti ia i lf nable to ake r tion l . f t as it l t given his intoxicated and medicated condition, and those circumstances raise an issue of fact whether it was reasonably foreseeable to allow the decedent to elope from the hospital. The question of whether a defendant owes a duty of care to another person is a question of law for the courts. "Generally, there is no 'duty to control the conduct of third persons to prevent them from causing injury to others,' even where, as a practical matter, the defendant could have exercised such control". However, courts have imposed a duty of care where "there exist special circumstances in which there is sufficient authority and ability to control the conduct of third persons that [courts] have identified a duty to do so. Thus, [courts] have imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [the] third person whose actions expose plaintiff to harm such as would require [one] defendant to protect the plaintiff from the conduct of others" [citations omitted] Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914, 915-916. This Court determines that clearly the third party complaint fails to allege facts which fit within a cognizable legal theory of simple negligence. The Nassau University Medical Center shows there is no duty owed here to impose involuntary retention of the decedent, and one should not be imposed under these circumstances. The Nassau University Medical Center took reasonable steps, under the circumstances, by administering, a sedative, and assigning a patient care assistant to the decedent. In opposition, neither Robert W. Core nor The Town of Hempstead regarding the cause of action seeking show facts which fit within a cognizable legal theory of contribution alleging the Nassau University Medical Center caused or augmented the decedent's alleged damages (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 Page 7 of 8 t xicated t ion, s rcu stances i f ther it as l res le t e t . f t t5r ts. e r lly, t ere is ' t l b t r r j r ' , t is tr l . r, court hav i i l st f t ri ili [courts] ti . T , [courts] hav i a t foth i l i : a r l ti i t f t [the] s i tif to [one] r t t [citations i ] lav akeside r f r alts, l05 ' ' ' i c t i l l l i t l f t it in iza le le ige i i ic l t r s l t e ld t i posed nder these circumsta . e ic l l st , i i t ring, i e, patient care assistant to the dec . , t r t . e pstead f i i ts l l tri i l e ass university e ical center aused r ented the t's l z fi s l c itie . c 7 | J. S. C. N.Y.2d 599). ORDERED that the motion is granted pursuant to CPLR 2221(d) and (3) for leave to reargue and renew the court order dated July 1, 2014; and it is also, ORDERED that upon reargument and renewal the Court reverses, on the facts and law, its prior decision and order, and dismisses the third party complaint and all cross claims in their entirety. So ordered. Dated: December 3, 2014 NON FINAL DISPOSITION ENTERED DEC 0 8 2014 NASSAU COUNTY COUNTY CLERK'S OFFICE Page 8 of 8 . t c f l l , f l t l f , f t i r iss l i t ll s r retY. t d: ' I ffiffi I 201 CO ' OF ENTER: Exhibit B 4 !* )+ ' - ( , $ ) " 6 5 " 6 2 6 " $ " 5 5 " 3 " 6 ( 6 4 & 3 *& / *" ( " 3 " 8 ; 0 . */ ( " - - & ( " / ; - *7 */ ( 4 5 0 / ( & / & 4 & & 0 3 - & " / 4 . 0 / 3 0 & 4 5 & 6 # & / ; " 5 & 4 0 / 5 " 3 *0 4 $ ) 6 ; - & 3 $ ) & . 6 / ( 4 & / & $ " $ " ; 6 ( " 8 " ; / & 5 *0 ( " 5 0 . 1 , */ 4 $ 0 3 5 - " / % # 3 0 0 . & $ ) & / " / ( 0 . 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