Davis v. South Nassau Communities Hosp.
| Decision Date | 12 July 2012 |
| Docket Number | Index No.: 1834/11 |
| Citation | 2012 NY Slip Op 31969 |
| Parties | EDWIN DAVIS and DIANNA DAVIS, Plaintiffs, v. SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C and ISLAND MEDICAL PHYSICIANS, P.C., Defendants. |
| Court | New York Supreme Court |
Acting Supreme Court Justice
Motion Dates: 02/14/12
02/14/12
03/13/12
XXX
The following papers have been read on these motions:
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¦ ¦Papers Numbered¦
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¦Notice of Motion (Sea. No. Oil Affirmation and Exhibits ¦1 ¦
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¦Notice of Cross-Motion (Seq. No. 021 Affirmation and Exhibits¦ ¦
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¦Affirmation in Opposition to Motion Seq. No. 01 and Seq. No. ¦ ¦
¦02 ¦ ¦
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¦Notice of Cross-Motion (Sea. No. 031 Affirmation and Exhibits¦4 ¦
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¦Affirmation in Opposition to Cross-Motion Seq. No. 03 ¦5 ¦
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¦Affirmation in Opposition to Cross-Motion Seq. No. 03 ¦6 ¦
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¦Reply Affirmation ¦ ¦
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Upon the foregoing papers, it is ordered that the motions are decided as follows: Defendants Regina E. Hammock, DO ("Hammock"), Christine DeLuca, PA s/h/a/ Christine DeLuca, RPA-C ("DeLuca") and Island Medical Physicians, P.C. ("Island") move (Seq. No. 01), pursuant to CPLR § 3211(a)(7), for an order dismissing plaintiffs' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action. Plaintiffsoppose the motion.
Defendant South Nassau Communities Hospital ("South Nassau") cross-moves (Seq. No. 02), pursuant to CPLR § 3211(a)(7), for an order dismissing plaintiffs' Verified Complaint with prejudice as said Verified Complaint fails to state a cause of action. Plaintiffs oppose the motion.
Plaintiffs cross-move (Seq. No. 03), pursuant to CPLR §§601, 602 and 1002, for an order consolidating the instant action, Action #3, with Action #11 , filed by plaintiffs against Lorraine Walsh under Index No. 8405/09, and with the two actions filed by Lorraine Walsh, consolidated under Index No. 23966/09; and cross-move, pursuant to CPLR § 3025(b) for an order granting them leave to serve an amended complaint nunc pro tunc against the defendants in the instant action adding a cause of action for negligence. Defendants oppose the motion.
This action arises from medical care provided to non-party Lorraine A. Walsh at the emergency department of defendant South Nassau on March 4, 2009. Shortly after her discharge from the emergency department, after being treated with what plaintiffs characterize as potent narcotic medications, Ms. Walsh was involved in a motor vehicle accident with plaintiff Edwin Davis who was severely injured when the school bus he was operating was demolished in a head-on collision with the Walsh vehicle.
Plaintiffs allege that, immediately prior to the accident, Ms. Walsh was treated at defendant South Nassau's emergency room by defendants Hammock and DeLuca whoadministered Toradel 30 mg IV, Dilaudid .5mg IV and Ativan 15mg IV to the patient. According to plaintiffs, the emergency room record indicates that Ms. Walsh was given no warnings about operating a motor vehicle prior to her discharge. Nineteen minutes after her discharge from defendant South Nassau, Ms. Walsh, while allegedly cognitively impaired, drove her 2003 Ford automobile across the double yellow lines of West Merrick Road into the opposite lane of traffic and collided head on with the school bus operated by plaintiff Edwin Davis.
Plaintiffs allege that they were injured due to the malpractice of defendants in releasing Ms. Walsh from the emergency room of defendant South Nassau in an impaired and diminished cognitive and physical state caused by defendants' treatment, without allowing or permitting the effects of the medications administered to abate and without instructing the patient on the dangers of operating an automobile and/or without arranging a safe method of transportation for her. Plaintiffs argue that "no person given the medications that Ms. Walsh was administered can be allowed to blindly have her keys, get into a motor vehicle and operate same on a public roadway."
In the related consolidated action commenced by Lorraine Walsh against defendants herein, bearing Index No. 03966/09 (Action #2), Ms. Walsh alleges that defendants committed medical malpractice by 1) releasing her from defendant South Nassau in an impaired and drugged state; 2) failing to warn her of the driving related effects of the medication that had been administered to her and the foreseeable risks of operating a vehicle under the influence of said medications; and 3) failing to evaluate her ability to drive after she had received potent narcotic medications.
Defendants seek dismissal of the Verified Complaint, pursuant to CPLR § 3211(a)(7)predicated on the grounds that, in the absence of a physician/patient relationship between plaintiffs and defendants, a cause of action for medical malpractice cannot be sustained. Moreover, in the absence of any duty owed by defendants to plaintiffs, a claim for negligent hiring against defendant Island2 is not viable.
In assessing the adequacy of a complaint in light of a CPLR § 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept allegations as true and provide plaintiff with the benefit of every possible favorable inference. See Landon v. Kroll Lab. Specialists, Inc., 91 A.D.3d 79, 934 N.Y.S.2d 183 (2d Dept. 2011).
In opposition to defendants' motion and cross-motion to dismiss the Verified Complaint, plaintiffs argue that a physician's duty of care is extended to third parties where the physician's services implicate the protection of identified persons foreseeably at risk. See Tenuto v. Lederle Labs., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 665 N.Y.S.2d 17 (1997). Inasmuch as defendants allegedly transformed Ms. Walsh, the offending tortfeasor, into a cognitively and physically impaired individual and released her from defendant South Nassau without warning her of the driving related effects of the medication administered to her, plaintiffs argue that defendants breached a duty owed to the driving public. In short, plaintiffs contend that defendants are liable for the accident because they discharged Lorraine Walsh from defendant South Nassau in an impaired/diminished cognitive condition and failed to warn her of the hazards of driving in such condition.
Plaintiffs assert that a physician who administers or prescribes an intoxicating drug to a patient and is aware of its effects has a duty to the traveling public to warn the patient not todrive while under the influence of the drug and not to discharge the patient without properly evaluating her ability to drive.
Under the circumstances of this case, the absence of a doctor/patient relationship between plaintiffs and defendants precludes a cause of action based on medical malpractice. The sine qua non of a medical malpractice claim is the existence of a doctor/patient relationship. It is this relationship which gives rise to the duty imposed on a doctor to properly treat his or her patient. In the absence of a doctor/patient relationship, plaintiffs' claim against defendants sounding in medical malpractice is legally insufficient. See Fox v. Marshall, 88 A.D.3d 131, 928 N.Y.S.2d 317 (2d Dept. 2011).
Plaintiffs have cross-moved to amend the Verified Complaint to add a cause of action sounding in common law/simple negligence.
The critical factor in distinguishing whether conduct may be deemed malpractice or negligence is the nature of the duty owed to plaintiff that the defendant is alleged to have breached. See Spiegel v. Goldfarb, 66 A.D.3d 873, 889 N.Y.S.2d 45 (2d Dept. 2009) Iv to appeal denied 15 N.Y.3d 711, 910 N.Y.S.2d 36 (2010). A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes medical malpractice. See Dupree v. Giugliano, 87 A.D.3d 975, 929 N.Y.S.2d 305 (2d Dept. 2011). Where the gravamen of a complaint is not in negligence in furnishing medical treatment to a patient but in failing to fulfill a different duty, the claim sounds in negligence. See Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 650N.Y.S.2d 629(1996).
As an initial matter, the Court notes that leave to amend a pleading should be freely given absent prejudice or surprise resulting from the delay. See CPLR § 3025(b). While the decision togrant or deny the requested relief is left to the sound discretion of the court (see Gitlin v. Chirinkin, 60 A.D.3d 901, 875 N.Y.S.2d 585 (2d Dept. 2009)), the relief need not be granted where the proposed amendment is palpably lacking in merit. See Jenal v. Brown, 80 A.D.3d 727, 916 N.Y.S.2d 780 (2d Dept. 2011). In considering a motion for leave to amend, it is incumbent on the court to examine the sufficiency and merits of the proposed amendment. See Moyse v. Wagner, 66 A.D.3d 976, 888 N.Y.S.2d 148 (2d Dept. 2009).
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