Diaz v. New York Downtown Hospital
| Citation | 99 N.Y.2d 542,754 N.Y.S.2d 195,784 N.E.2d 68 |
| Parties | EVA DIAZ, Appellant, v. NEW YORK DOWNTOWN HOSPITAL, Respondent, et al., Defendants. |
| Decision Date | 12 December 2002 |
| Court | New York Court of Appeals |
Paul A. Shneyer, P.C., New York City (Paul A. Shneyer and Lawrence A. Goldberg of counsel), for appellant.
Martin, Clearwater & Bell, New York City (Patricia D'Alvia, Robert T. Whittaker and Michael H. Zhu of counsel), for respondent.
Before: Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff was sexually assaulted by a male technician while undergoing a transvaginal sonogram at defendant New York Downtown Hospital. At the time of the incident, plaintiff and the technician were alone in the examination room. Plaintiff commenced this action against the hospital alleging that it negligently hired, trained, supervised and retained the sonography technician. The hospital moved for summary judgment dismissing the complaint, asserting that it had no prior knowledge of any propensity of the technician to commit such acts. In opposition to the motion, plaintiff submitted the affirmation of Dr. Jessica Fuchs Berkowitz, a board-certified radiologist. Dr. Berkowitz opined that the hospital deviated from the standard of care for performing transvaginal ultrasounds on female patients by not instituting a policy requiring the presence of a female staff member during such procedures. In support of her opinion, Dr. Berkowitz cited guidelines promulgated by two national radiological organizations (the American College of Radiology and the American Institute of Ultrasound in Medicine) which recommend that a woman be present as an examiner or chaperone for vaginal sonograms. Dr. Berkowitz asserted that one purpose of the recommended policy was to "ensure the personal safety of the female patient."
Supreme Court granted the hospital's motion and dismissed plaintiff's causes of action, except with respect to the negligent supervision claim, holding that the expert affirmation created a question of fact as to whether the hospital deviated from the applicable standard of care by failing to implement the recommended protocol. On the hospital's appeal, the Appellate Division reversed and dismissed plaintiff's complaint in its entirety as against the hospital. The majority of the Court concluded that the guidelines relied on by plaintiff's expert failed to establish an industry standard and that the physician proffered no evidence to support the existence of an actual practice or custom in the radiological community requiring the presence of a chaperone during vaginal...
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Expert witnesses
...Corp. 226 A.D.2d 213, 640 N.Y.S.2d 548 (1st Dept. 1996) Pure speculation or guesswork is insuicient. Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195 (2002); Romano v. Stanely, 90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997); DeLeon v. New York City Transit Authority, 305 A.D.2d 227,......
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Expert witnesses
...Corp. 226 A.D.2d 213, 640 N.Y.S.2d 548 (1st Dept. 1996) Pure speculation or guesswork is insuicient. Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195 (2002); Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589 (1997); DeLeon v. New York City Transit Authority, 305 A.D.2d 227,......
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Expert witnesses
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