N. X. v. Cabrini Med. Ctr.
| Decision Date | 18 January 2001 |
| Citation | 719 N.Y.S.2d 60,280 A.D.2d 34 |
| Parties | (A.D. 1 Dept. 2001) N. X., Plaintiff-Respondent-Appellant, v. Cabrini Medical Center, Defendant-Appellant-Respondent, and Andrea Favara, M.D., Defendant. 306 : FIRST JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
Charles Palella, attorney for plaintiff-respondent-appellant,
Daniel S. Ratner, of counsel (Daryl Paxson, on the brief, Heidell, Pittoni, Murphy & Bach, LLP, attorneys for defendant-appellant-respondent.
Israel Rubin
David B. Saxe
John T. Buckley
The issue presented by this appeal is whether a hospital may be held liable for a sexual assault committed by a surgical resident either (a) because the assault is regarded as being within the scope of the resident's employment, or (b) because the hospital's nurses, who had no reason to know of the resident's deviant proclivities and were unaware that an assault was occurring, were in close proximity. In our view, settled principles of law preclude imposing tort liability upon the hospital for the unforeseeable crime committed by the resident. While plaintiff and the dissent invite us to depart from settled law and expand the outer limits of hospital liability, we decline the invitation.
This action arose on July 27, 1995, when plaintiff underwent a laser ablation of genital warts in the ambulatory surgical unit (ASU) at Cabrini Medical Center (Cabrini). An hour later, while she was still feeling the effects of anesthesia, she was transferred to the ASU's Phase 1 Recovery Room, which contained four stretchers. Nurse Imelda Reyes and a second nurse, whom she was training, checked plaintiff's vital signs. After about 10 minutes, the nurses turned their attention to a patient who had just been placed on another stretcher and were soon joined by nursing supervisor Linda Gamboa. Shortly thereafter, nurse Reyes, who was standing with her back to plaintiff's stretcher, peripherally saw a male physician, wearing hospital scrubs with a Cabrini logo and a Cabrini identification card, enter the ASU and walk to plaintiff's bed. Nurse Reyes did not see or hear anything while the doctor was at plaintiff's bedside.
According to plaintiff, she awoke to find defendant Dr. Favara pulling her hospital gown over her head and placing his hands between her thighs. He ordered her to open her legs and then placed his fingers inside her vagina and her anus. Plaintiff attempted to pull her gown down to cover her body and, after she asked Dr. Favara to stop three times, he walked away. Dr. Favara had not assisted in plaintiff's surgery and was not assigned to her.
In nurse Reyes' estimation, Dr. Favara was in the ASU a total of one minute. As he was leaving, nurse Reyes introduced herself to Dr. Favara, a surgical resident. Nurse Gamboa then joined them and introduced herself. It is uncontroverted that none of the nurses in the ASU was aware that Dr. Favara had just criminally assaulted plaintiff.
After Dr. Favara left, nurse Reyes moved plaintiff to the Phase II area, following which plaintiff began to cry and told her about Dr. Favara's "examination." Nurse Gamboa was called, and she immediately asked Dr. Favara to return to the ASU. Under her questioning, he admitted he had performed, what he termed, a pelvic examination upon plaintiff and that he did so without a female witness present.
Nurse Gamboa notified Dr. LaRaja, who had performed plaintiff's surgery and who was also the director of surgery and of the surgical residency program. Within a few hours of the incident, Dr. LaRaja met with Dr. Favara and asked him why he had seen plaintiff in the ASU. Dr. Favara responded, "I really can't answer that." Dr. Favara was immediately suspended from treating patients and, after further investigation by Cabrini's Human Resources Department, he was terminated.
Plaintiff then commenced this action, setting forth claims against Cabrini for negligence in hiring Dr. Favara and in failing to adequately safeguard plaintiff; against Dr. Favara and Cabrini for medical malpractice; and against Dr. Favara for battery, lack of informed consent, and intentional infliction of emotional distress. The complaint also alleged that Cabrini was vicariously liable for Dr. Favara's conduct because he was acting within the scope of his employment or under apparent authority from Cabrini. We note that the liability of Dr. Favara is no longer at issue as a judgment has already been entered against him.
Cabrini subsequently moved for summary judgment dismissing the complaint on the ground that there was no evidence it was negligent in its supervision of Dr. Favara. It also asserted that it could not be vicariously liable for Dr. Favara's conduct since it was not within the scope of his employment and was committed solely for his personal gratification.
Opposing the motion, plaintiff argued that there was an issue of fact as to whether Dr. Favara's actions were performed within the scope of his employment. Plaintiff argued further that there was an issue of fact as to whether Cabrini, via its nurses, fulfilled its duty to safeguard her during her recovery. In support of her position, plaintiff submitted the affirmation of Dr. G. P. Carrera. Among other things, Dr. Carrera opined that Cabrini had a heightened responsibility to be vigilant in protecting plaintiff because she had been sedated. This heightened duty, it was alleged, required the ASU nurses to stop and question Dr. Favara, ascertain the reason for his presence before permitting him to approach plaintiff, and monitor his interaction with plaintiff.
Supreme Court held that Dr. Carrera's affidavit raised an issue of fact as to whether Cabrini had a "heightened responsibility" to safeguard plaintiff. This responsibility, Supreme Court believed, required the Cabrini nurses to be aware of Favara's presence, to inquire as to his intentions, and to ensure that any examination was performed in compliance with hospital rules, which mandated that a female witness be present during a pelvic examination. As to the issue of vicarious liability, the court concluded that a question of fact existed as to whether Dr. Favara's assault was within the scope of his employment. The court only dismissed the claim for negligent hiring, which plaintiff conceded she could not prove, and the claim for vicarious liability insofar as it was based on apparent authority.1 We conclude that the court erred in denying summary judgment to Cabrini.
Initially, to the extent that plaintiff seeks to hold Cabrini vicariously liable for the sexual assault committed by Dr. Favara, such liability is not sustainable. An employer may be held vicariously liable for the tortious acts of its employee only if those acts were committed in furtherance of the employer's business and within the scope of employment (see, Riviello v Waldron, 47 N.Y.2d 297). Based upon this principle, it has been repeatedly held that, where a hospital employee commits a sexual assault, such conduct is not in furtherance of the employer's business and cannot form the basis for vicarious liability (Judith M. v Sisters of Charity Hosp., 93 N.Y.2d 932; Mataxas v North Shore Univ. Hosp., 211 A.D.2d 762; Nicolette T. v Hospital for Joint Diseases/Orthopaedic Inst., 198 A.D.2d 54; Cornell v State of New York, 60 A.D.2d 714, affd 46 N.Y.2d 1032) Here, of course, there is no question but that Dr. Favara committed a sexual assault, not an examination, and no one, including plaintiff, seriously contends otherwise.
Notwithstanding these long-settled principles, the dissent asserts that because doctors, by virtue of their profession, are sometimes authorized to examine the most intimate portions of the human body, a sexual assault committed by a doctor may be within the scope of his employment. The dissent then reaches the extraordinary conclusion that the sexual assault in this case was the equivalent of a medical procedure, namely, a pelvic examination - even though it is uncontroverted that Dr. Favara was sexually assaulting plaintiff, and not conducting a pelvic examination. According to the dissent, this conclusion is warranted because the doctor's violation of plaintiff's most private parts "would be, under other circumstances, a medical procedure." This analysis, besides being somewhat startling, does not bear scrutiny.
Once it is determined that Dr. Favara, who was not plaintiff's physician, committed a sexual assault, his acts were, as a matter of law, "wholly personal in nature, outside the scope of his employment, and not in furtherance of defendant hospital's business," which, of course, is to provide medical treatment (Nicollete T. v Hospital for Joint Diseases/Orthopaedic Inst., supra at 55). A sexual assault committed by a physician can never be considered a mere deviation from the physician's role as a provider of medical care (cf., Jones v Weigand, 134 App Div 644). Because of this, we are unable to perceive how this sexual assault, committed upon a victim who was not the doctor's patient, could be considered to be within the penumbra of the doctor's employment. Since the assault was not within the scope of employment, it follows that Cabrini could not be vicariously liable for it.
As a matter of stare decisis, this conclusion is mandated by the Court of Appeals' decision in Judith M. v Sisters of Charity Hosp. (93 N.Y.2d 932, supra).. In that case, an orderly was assigned the duty of bathing a patient's entire body (see, 249 A.D.2d 890). While doing so, it was alleged that he sexually abused the patient by engaging in improper touching (id. at 891). On this factual scenario, the Court of Appeals held that the employee's conduct was not within the scope of employment because he "departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business [citation omittedl" (93 N.Y.2d 932, 933).
What is evident is...
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