NX v. Cabrini Med. Ctr.

• Decision Date: 14 February 2002
• Citation: 739 N.Y.S.2d 348,97 N.Y.2d 247,765 N.E.2d 844
• Parties: N. X., Appellant, v. CABRINI MEDICAL CENTER, Respondent, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

97 N.Y.2d 247

765 N.E.2d 844

739 N.Y.S.2d 348

N. X., Appellant, v. CABRINI MEDICAL CENTER, Respondent, et al., Defendant.

Court of Appeals of the State of New York.

Argued January 3, 2002.

Decided February 14, 2002.

Kurzman Karelsen & Frank, LLP, New York City (Charles Palella of counsel), for appellant.

Heidell Pittoni Murphy & Bach, LLP, New York City (Daniel S. Ratner of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

WESLEY, J.

This troubling case involves an egregious abuse of the physician-patient relationship—the conscious use of a doctor's professional position to exploit a patient's vulnerabilities for self-gratification through sexual contact. Plaintiff N. X., a young woman recovering from vaginal surgery at Cabrini Medical Center, was sexually assaulted by a surgical resident employed by the hospital. There is no dispute about the assault or the resident's liability. However, we are called upon to determine whether Cabrini may be liable here under a theory of vicarious liability or for any negligence in its duty to protect plaintiff.

After undergoing a laser ablation of genital warts, plaintiff—still under the effects of anesthesia—was placed in the Phase I recovery room, a small, four-bed ambulatory surgical unit. Nurse Imelda Reyes, accompanied by another nurse, admitted plaintiff to the unit and monitored her vital signs. Minutes later, the nurses turned their attention to a second patient who had been placed on an adjacent bed just two feet away. They were soon joined by Nurse Gamboa, their supervisor. Although curtains existed between each patient area, the curtain between plaintiff and the second patient was not drawn. The remaining two beds in the unit were unoccupied.

Shortly thereafter, Dr. Andrea Favara, a surgical resident wearing Cabrini scrubs and identification, entered the recovery room and headed for plaintiff's bed. Favara was not one of the physicians listed on plaintiff's chart; none of the nurses knew him. According to plaintiff, she awoke to find Favara pulling up her hospital gown, pushing her thighs apart, and ordering her to open her legs. He then placed his fingers inside her vagina and anus. Plaintiff tried to sit up and cover herself with the gown, and repeatedly asked him to stop. Upon her third plea, he removed his fingers, causing her great pain. As the doctor was hastily leaving the recovery room, the nurses intercepted him and introduced themselves. Although all of the nurses were in close proximity to plaintiff's bed and appear to have been generally aware of Favara's presence, they denied seeing his interaction with plaintiff or hearing anything. After plaintiff complained to the nurses about what had taken place, the supervising nurse confronted Favara, who admitted he had "examined" plaintiff without the presence of a female witness as required by hospital rules. Following an investigation, Cabrini terminated Favara.

Plaintiff commenced this action asserting several causes of action against Cabrini, including negligent hiring, negligence in failing to safeguard her adequately and medical malpractice. She also claimed that Cabrini was vicariously liable for Favara's conduct, alleging that he was acting within the scope of his employment or under the cloak of apparent authority. Insofar as relevant here, Supreme Court concluded that questions of fact precluded defendant's motion for summary judgment with respect to the failure to safeguard claim and whether the assault was within Favara's scope of employment.¹

A divided Appellate Division modified by granting Cabrini's motion in its entirety (280 AD2d 34). The majority began its analysis with the assertion that "it is uncontroverted that the nurses were unaware of the assault until after it occurred" (id. at 40). It then reasoned that the direct negligence claim must fail because Favara's misconduct was not foreseeable as a matter of law and liability was further precluded by practical and policy considerations underlying the physician-nurse relationship. The Court also dismissed the vicarious liability claims because the doctor was unquestionably acting outside the scope of his authority. Two dissenters disagreed with the majority on both matters. They noted that the majority's holding on the direct negligence cause of action failed to consider the actual foreseeability of harm indicated by "observations the hospital staff could or should have made at the time immediately preceding the actual wrongdoing, of things sufficiently unusual or out of the ordinary as to strengthen the possibility of misconduct, in order to warrant some curative action or follow-up" (280 AD2d, at 50). We agree, in part, with the dissent and reinstate plaintiff's direct negligence cause of action only.

We reject plaintiff's assertion that Cabrini is vicariously liable for Favara's misconduct. Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment (see, Riviello v Waldron, 47 NY2d 297, 302). A sexual assault perpetrated by a hospital employee is not in furtherance of hospital business and is a clear departure from the scope of employment, having been committed for wholly personal motives (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933).² In Judith M., this Court rejected a claim of vicarious liability on similar facts. There, an orderly assigned to bathe a patient sexually abused her while doing so. We held that the employee "departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business" (id. at 933; see also, Cornell v State of New York, 46 NY2d 1032,affg 60 AD2d 714; Mataxas v North Shore Univ. Hosp., 211 AD2d 762).

As the Appellate Division majority opinion aptly recognized, this case presents an even more compelling basis for dismissal of the vicarious liability claim than Judith M. Unlike the employee in Judith M., who committed a sexual assault while engaged in his assigned duties, Favara was not charged with plaintiff's care. Furthermore, it is conceded that an internal pelvic exam was contraindicated in light of the nature of plaintiff's surgery. Thus, plaintiff's disingenuous attempt to characterize the misconduct as a purported "examination" that was within Favara's hospital duties is of no avail. We refuse to transmogrify Favara's egregious conduct into a medical procedure within the physician's scope of employment. This was a sexual assault that in no way advanced the business of the hospital.³

However, we disagree with the Appellate Division's determination that the hospital was entitled to summary judgment on plaintiff's claim that Cabrini's nurses failed to protect plaintiff adequately as she recovered from surgery. To reach this result we need not—and do not—accept plaintiff's invitation to adopt a rule of "heightened" duty premised on plaintiff's sedated condition that would require nurses in such instances to stop doctors and other health care professionals to ascertain their purpose before allowing them to approach a patient. We conclude, however, that under the settled hospital-patient duty equation there are issues of fact as to whether the nurses actually observed or unreasonably ignored events immediately preceding the misconduct which indicated a risk of imminent harm to plaintiff, triggering the need for protective action.

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety (see, Morris v Lenox Hill Hosp., 232 AD2d 184, 185,affd for reasons stated 90 NY2d 953). This sliding scale of duty is limited, however; it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance (see, Killeen v State...