Finkelstein v. Cornell University Medical College

• Decision Date: 01 February 2000
• Citation: 702 N.Y.S.2d 285,269 A.D.2d 114
• Court: New York Supreme Court — Appellate Division
• Parties: JEROME FINKELSTEIN, Appellant,<BR>v.<BR>CORNELL UNIVERSITY MEDICAL COLLEGE, Respondent.

269 A.D.2d 114

702 N.Y.S.2d 285

JEROME FINKELSTEIN, Appellant,

v.CORNELL UNIVERSITY MEDICAL COLLEGE, Respondent.

Decided February 1, 2000.

Concur — Nardelli, J. P., Williams, Rubin and Andrias, JJ.

Plaintiff Jerome Finkelstein, M.D. was employed by defendant Cornell University Medical College as an Associate Professor of Surgery. Simultaneously, he held the position of staff surgeon at New York Hospital, where he was one of the two attending surgeons at the New York Hospital Burn Center. The other attending surgeon at the burn unit, Michael Madden, M.D., also an Associate Professor of Surgery at defendant Medical College, had been his colleague and professional partner for some 20 years. Tension arose at the burn unit during 1994 as the friendship between the two men deteriorated. Dr. Finkelstein alleges that Dr. Madden began to exhibit erratic behavior, which plaintiff brought to the attention of hospital officials on several occasions during 1995. In March 1996, as the result of plaintiff's complaints, Dr. Roger Yurt, Director of the Burn Center, reviewed certain cases that had particularly concerned Dr. Finkelstein and found "no departure from standard of care" on the part of Dr. Madden.

The verified complaint filed September 11, 1996 states that, as a result of his complaints: "Defendants relieved Finkelstein of his duties at the Burn Center, announced the termination of his faculty appointment, transferred him to Jamaica Hospital and reduced his salary as punishment for having reported, as required by Public Health Law [§ 230 (11) (a), (d) (ii)], that Dr. Madden's actions constituted a threat to public safety." Pursuant to Labor Law § 740 (the Whistleblower Statute), the complaint seeks (1) recovery of Dr. Finkelstein's lost salary, reinstatement to his position as Associate Director of the New York Hospital Burn Center and to his faculty position as Associate Professor at Cornell University Medical School, and (2) compensation for the damage to his professional reputation for defamation per se in an amount not less than $5,000,000, together with costs and attorney's fees.

Defendant Medical College contends that plaintiff was terminated from his teaching position, along with Dr. Madden, because their conflict was disruptive. It asserts that plaintiff's reassignment to Jamaica Hospital, which does not have a burn unit, was for the purpose of separating the two antagonists and not in retaliation for the complaints directed at Dr. Madden.

Aside from the summary judgment motion, Supreme Court had before it a dispute concerning the discovery of materials maintained by the Department of Surgery's Quality Assurance Committee at the hospital and the proposed examination of persons who sat on that committee. Application for leave to undertake such discovery was required because the complaint has been dismissed as against New York Hospital on the ground that plaintiff's employer is defendant Cornell University Medical College, which is answerable for any violation of the Whistleblower Statute. This ruling has not been appealed. Therefore, plaintiff is seeking to depose nonparty witnesses. In opposing the application, defendant took the position that the information sought by plaintiff is privileged. The discovery issue was rendered moot by Supreme Court's award of summary judgment to defendant, and plaintiff has appealed only from so much of the order as granted defendant's motion dismissing the complaint.

Supreme Court properly concluded that the determination of the Office of Professional Medical Conduct (OPMC), which closed its investigation into the actions by plaintiff's colleague without taking any action, is not dispositive of this action (David v Biondo, 92 NY2d 318, 324-325). Unlike the plaintiff in that case, plaintiff herein avers that he was not even interviewed by the OPMC, and collateral estoppel does not apply to bar this lawsuit.

We also agree that if plaintiff's colleague was practicing medicine at defendant hospital while impaired by a psychiatric disability, it represented a substantial danger to the public health and safety (Labor Law § 740 [2] [a]; Remba v Federation Empl. & Guidance Serv., 76 NY2d 801, 802; Rodgers v Lenox Hill Hosp., 211 AD2d 248, 253). Supreme Court's decision notes that various individuals with personal knowledge of the pertinent events, including three registered nurses at the burn unit, provided affidavits that Dr. Madden had "repeatedly exhibited signs of mental disturbance and provided questionable treatment to burn victims under his care." As Supreme Court found, such conduct is attributable to defendant employer, clearly...