N. X. v. Cabrini Medical Center

OPINION OF THE COURT Friedman, J. 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 plaintiffs 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 [36] plaintiffs stretcher, peripherally saw a male physician, wearing hospital scrubs with a Cabrini logo and a Cabrini identification card, enter the ASU and walk to plaintiffs bed. Nurse Reyes did not see or hear anything while the doctor was at plaintiffs 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 plaintiffs 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 plaintiffs 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. [37] 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 NY2d 297). Based upon this principle, it has been [38] 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 NY2d 932; Mataxas v North Shore Univ. Hosp., 211 AD2d 762; Nicollette T. v Hospital for Joint Diseases/Orthopaedic Inst., 198 AD2d 54; Cornell v State of New York, 60 AD2d 714, affd 46 NY2d 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 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 plaintiffs most private parts “would be, under other circumstances, a medical procedure.” This analysis does not bear scrutiny. Once it is determined that Dr. Favara, who was not plaintiffs 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 (Nicollette 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 NY2d 932, supra). In that case, an orderly was assigned the duty of bathing a patient’s entire body (see, 249 AD2d 890). While doing so, it was alleged that he sexually abused the patient by engaging in improper touching (id., at [39] 891 [Lawton and Balio, JJ., dissenting]). 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 omitted]” (93 NY2d 932, 933). What is evident is that there is no legal or factual distinction between Judith M. and the instant case. In both cases the abuser, by virtue of his profession, was authorized to touch the most intimate portions of a patient’s body while performing his duties. And, in both cases the abuser departed from his employer’s business when, for “personal motives unrelated to the * * * Hospital’s business,” he improperly touched the patient. Judith M., therefore, specifically undermines the foundation of the dissent’s reasoning. If this were not enough, the facts of this case present an even more compelling basis for dismissal than those present in Judith M. In Judith M., it should be recalled, the abuser committed the sexual assault while performing his assigned duties, namely, bathing the patient. Here, by contrast, it is undisputed that the abuser was not assigned to perform any employment-related activity with respect to the patient — he simply entered a room and assaulted the patient.2 The dissent somehow believes that the improper touching of a woman’s body is converted into a medical procedure because the touching occurs in a hospital room as opposed to a hospital parking lot. In our view, no amount of legal rhetoric can ever transform the heinous act committed by Dr. Favara into anything other than what it was — a sexual assault. Moreover, no amount of rhetoric can obscure the dissent’s failure to explain how a sexual assault furthers a hospital’s business as a medical care provider.3 The question that remains is whether Cabrini is liable to plaintiff for Dr. Favara’s assault because its nurses failed to [40] prevent the attack. It bears reiteration that it is uncontroverted that the nurses were unaware of the assault until after it occurred. Plaintiff contends, however, that this fact is of no legal consequence because the Cabrini nurses were required to stop Dr. Favara, permitting him access to her only after they made a determination that access was appropriate, and that the Cabrini nurses had a duty to monitor Dr. Favara’s presence at her bedside to protect against the possibility that he would assault her. These duties, it is alleged, arise from a “heightened responsibility” imposed upon Cabrini to protect plaintiff due to her condition after surgery. In assessing the viability of these theories of liability, we begin by noting that a hospital unquestionably has a duty to exercise reasonable care and diligence to safeguard a patient from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety (Killeen v State of New York, 66 NY2d 850; Morris v Lenox Hill Hosp., 232 AD2d 184, affd 90 NY2d 953; Freeman v St. Clare’s Hosp. & Health Ctr., 156 AD2d 300; Clinton v City of New York, 140 AD2d 404, lv denied 73 NY2d 703). The scope of this duty, however, is not boundless and does not require a hospital to guarantee the patient’s security against any possible risk, regardless of how remote (cf., Killeen v State of New York, supra, at 851; Di Ponzio v Riordan, 89 NY2d 578, 583). Rather, a hospital’s duty to protect its patients is tempered by the maxim enunciated by Chief Judge Cardozo more than 70 years ago that “[t]he risk reasonably to be perceived defines the duty to be obeyed” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344). The emergent issue, therefore, is whether Dr. Favara’s conduct was reasonably foreseeable. Viewed otherwise, if, as plaintiff alleges, the Cabrini nurses had a duty to make inquiry of Dr. Favara before he approached plaintiff and to monitor him thereafter, such a duty must arise because Dr. Favara’s conduct was reasonably foreseeable. We do not believe that it was. An act of sexual deviance committed by a doctor with no history of sexual misconduct is no doubt possible, as is evidenced [41] by its occurrence in this case. In assessing the scope of the duty owed by Cabrini’s nurses, however, a mere possibility of improper conduct is insufficient to impose liability since, historically, liability for negligence has been determined by what is probable, not merely by what is possible (see, Velez v City of New York, 157 AD2d 370, Iv denied 76 NY2d 715; see also, Comment, 1A NY PJI 186 [3d ed 2000]). “[Although virtually every untoward consequence can theoretically be foreseen * * * the law draws a line between remote possibilities and those that are reasonably foreseeable because ‘[n]o person can be expected to guard against harm from events which are * * * so unlikely to occur that the risk * * * would commonly be disregarded’ [citations omitted]” (Di Ponzio v Riordan, 89 NY2d 578, 583, supra). Here, the possibility that a surgical resident with no history of sexual misconduct would enter a surgical recovery room and assault a patient is too remote to be considered legally foreseeable.4 This conclusion is directly supported by Cornell v State of New York (60 AD2d 714, affd 46 NY2d 1032, supra). In Cornell, the infant plaintiff was a patient at a State mental health facility. During his commitment to that facility an attendant committed a homosexual act upon him. The plaintiff commenced an action against the State seeking to hold it liable for the sexual assault. Finding that liability could not be imposed, the Appellate Division pointed out that the attendant was hired upon strong recommendations of his former employers and had good or excellent ratings during the six years he worked for the State. The Court then stated: “[N]othing in the record indicates that the State either knew or should have known of [the attendant’s] alleged dangerous homosexual tendencies. Under these circumstances, the risk that he might commit a homosexual act with claimant was not ‘reasonably to be foreseen’ [citations omitted]” (id., at 714). Neither plaintiff nor the dissent suggests any reason why the assault in Cornell is regarded as a risk not “reasonably to [42] be foreseen” while the assault here is foreseeable.5 Recognizing this, the dissent seeks to distinguish Cornell, noting that, unlike the instant case, there is no indication that other hospital staff were in the vicinity at the time of the attack. This is a distinction without a difference as it fails to address Cornell’s unequivocal holding that the absence of prior knowledge of propensity renders the attack unforeseeable. The dissent then states that “there is a difference between an [attendant] and a physician.” Hence, the dissent reaches the anomalous conclusion that an assault committed by an attendant is not foreseeable, but an assault committed by a doctor is foreseeable. As to the dissent’s intimation that the requirement of foreseeability can somehow be dispensed with because Cabrini owed plaintiff a heightened duty to protect her from its doctors, this intimation overlooks a fundamental axiom — any claim of negligence requires proof that the harm was reasonably foreseeable (see, Di Ponzio v Riordan, supra). Thus, whether there is a heightened duty or not, liability may not ensue unless it can be said that the harm was foreseeable. Apparently, the dissent believes that it is reasonable to assume that a doctor will sexually assault a patient. This is an assumption with which we cannot concur. Nor can we agree that foreseeablity may be established because Dr. Favara’s assault was allegedly within a “class of foreseeable hazards.” At its core, plaintiff’s claim in this action is that Cabrini, via its nurses, was negligent in failing to supervise Dr. Favara’s interaction with her. This being so, it is settled law that a necessary element of a negligent supervision claim requires a showing that the defendant knew of the employee’s propensity to. commit the tortious act or should have known of such propensity had the defendant conducted an adequate hiring procedure (Ray v County of Delaware, 239 AD2d 755, 757; see also, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, supra; Sato v Correa, 272 AD2d 389; Honohan v Martin’s Food, 255 AD2d 627; Seegers v Shibley Summer Day Camp, 255 AD2d 499; Kenneth R. v Roman Catholic Diocese, 229 AD2d 159, lv dismissed 91 NY2d 848). The failure to es [43] tablish this element renders the tortious conduct unforeseeable as a matter of law (id.). By seeking to reclassify the contours of foreseeability in this case, plaintiff and the dissent propose to alter long-standing principles in this area of jurisprudence. In a negligent supervision case, for instance, it would no longer be necessary to establish that the defendant knew or should have known of an employee’s propensity to engage in criminal conduct. Rather, the mere theoretical possibility of such conduct would be sufficient to demonstrate foreseeability. In addition, in a negligent supervision case the status of the wrongdoer, i.e., a surgical resident, would be an irrelevant factor. The foreseeability of a sexual assault would be the same whether the tortfeasor was a surgical resident entering a surgical ward or a rapist entering from the street. The dissent’s response to these points is that this case does not involve a negligent supervision claim. Rather, it involves a claim that Cabrini breached its duty to protect its patients. We find the dissent’s approach quite interesting as Judith M. instructs otherwise. Examination of the nisi prius decision in Judith M. shows that the hospital was alleged to have been negligent in failing to supervise the orderly who committed the assault while bathing the plaintiff. In seeking to support this claim, the plaintiff stated: “The hospital failed to limit [the orderly’s] direct patient care and/or failed to supervise his actions at all times that he came into contact with a female patient * * * [The hjospital has a duty to protect its patients from undue harm * * * [The hjospital did not even curtail [the orderly’s] contact with female patients, instead he was allowed to continue giving direct unsupervised care to female patients” (emphasis added). If one inserts the words “Dr. Favara” for the word “orderly” in the preceding paragraph it becomes evident that the claim in this case is premised on the identical legal theory advanced in Judith M., namely, that the hospital was negligent in permitting an employee to have unsupervised contact with a patient. Viewed otherwise, just as in Judith M., it is alleged that Cabrini was negligent in failing to protect plaintiff from Dr. Favara, failing to curtail Dr. Favara’s contact with plaintiff, and failing to supervise Dr. Favara at all times that he was with plaintiff. Faced with such a claim, the Appellate Division in Judith M. concluded that the plaintiffs claim was deficient [44] because there was no proof that the hospital knew or had reason to know of the orderly’s propensity to commit the tortious act, and the Court of Appeals affirmed that determination. Thus, we cannot agree with the dissent’s contention that our case does not involve a negligent supervision claim, and that the elements of such a claim need not be demonstrated. In concluding that a nurse is not required to stop and make inquiry of a doctor or supervise the doctor’s interaction with a patient, we are guided not only by the aforementioned observation that doctors do not normally commit sexual assaults upon patients, but also by the practical consideration that the duty the plaintiff and the dissent ask us to adopt is unmanageable (see, Di Ponzio v Riordan, 89 NY2d 578, 583, supra; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055, citing Becker v Schwartz, 46 NY2d 401, 408). For example, such a duty would require nurses throughout a hospital to monitor any doctor they were unfamiliar with whenever such doctor sought to approach a patient who, because of anesthesia, medication, or some other condition, was not fully lucid. This responsibility would, of course, present itself not only in recovery rooms but also in intensive care units and emergency rooms, in addition to countless other locations throughout the hospital. It goes without saying that requiring nurses to be the gatekeepers between doctors and patients would place an undue and weighty burden upon nursing staffs when viewed against the improbability of harm. In the end, we have no doubt that a nurse stationed at the bedside of every incapacitated patient might prevent a doctor from committing an assault; however, the burden that would be imposed upon a hospital and its nurses would be disproportionate to the risk being protected against. The duty owed by one member of society to another is a legal issue and, under such circumstances, the law does not impose a duty (see, Di Ponzio v Riordan, supra; Eiseman v State of New York, 70 NY2d 175, 187). The dissent, attempting to downplay the significance of the duty it would seek to impose, notes that nurses in neonatal units do not permit physicians “unconnected with that unit to simply walk in [and] * * * administer to a neonate” (emphasis added). This, it is asserted, shows that nurses are already burdened with a duty to act as gatekeepers between doctors and patients. As to this, we make two observations. First, there is no evidence in the record regarding the workings of a neonatal unit. Second, in this case, Dr. Favara was not “uncon [45] nected” to the ASU. Rather, he was a surgical resident entering a surgical ward where, the evidence shows, it was common and appropriate for doctors, residents, interns, and students to enter and attend to patients. Actually, the facts of this case highlight the inappropriateness of requiring nurses to interpose themselves between patient and doctor. Nurse Reyes testified at her deposition that it was not her practice to question the various residents and interns entering the ASU because “normally, there are so many doctors that come” and “[t]hey have so many things to do.” She further testified that, because so many doctors come in, there were no guidelines requiring inquiry of those physicians entering the ASU. In reflecting on what happened to plaintiff, Nurse Gamboa testified that she wondered how Dr. Favara committed the assault since he did not spend enough time in the ASU to do an examination and she did not even notice his presence until he was on the way out. The dissent, nevertheless, asserts that under this scenario the nurses had a duty, for the minute or so that Dr. Favara was in the ASU, to discontinue what they were doing for a different patient to ascertain Dr. Favara’s purposes, even though they knew he was a doctor. Seeking to diminish the novelty of this approach, the dissent states its proposed duty would not “require nurses to ‘stand guard’ or ‘interrogate’ anyone. Rather, what would be imposed * * * is an obligation to pay attention when something unusual occurs or someone out of the ordinary appears.” To support this position the dissent argues that, “[h]ad Nurse Reyes observed a stranger entering the room, her professional responsibilities would have required her to take some action, if only to call security.” By pointing to an example of a stranger entering the ASU the dissent illustrates the novelty of its view. There is no question that if Nurse Reyes observed a stranger entering the ASU she should have taken action. This is because the presence of a stranger would be unusual. It remains unchallenged, however, that it was not unusual for a surgical resident, such as Dr. Favara, wearing proper identification to enter the ASU. It should follow that there was no reason “to take some action.” Ultimately, the position advocated by the dissent ignores the commonly understood hierarchy at work in medical institutions. After all, “[t]he primary duty of a hospital’s nursing staff is to follow the physician’s orders” unless such orders are clearly contraindicated (see, Toth v Community Hosp., 22 NY2d 255, 265; see also, 10 NYCRR 405.5 [b] [1] [i]). To advocate, as [46] does the dissent, that doctors start reporting to nurses before they approach patients flies in the face of the everyday workings of hospitals and fundamentally reorders the physician/ nurse relationship. In advocating for a rule requiring doctors to obtain prior authorization from nurses before they may approach patients, the dissent does not point to any generalized practice in the medical field that requires doctors to get such pre-approval. Nor does the dissent point to a single appellate case that has found such a duty to exist as a matter of common law. Finally, we address the dissent’s comment that our legal conclusions are “harshly worded” and “unnecessarily rigid.” To this we can only say that following settled law is neither harsh nor rigid, it is stare decisis. We recognize that plaintiffs circumstances are extraordinarily sympathetic and that she has been the victim of an outrageous crime. This, however, does not provide a basis for casting aside settled principles of law. In the end, a sexual assault is not within the scope of a doctor’s employment, and a sexual assault committed by a doctor with no history of sexual misconduct is not foreseeable. Accordingly, the order of the Supreme Court, New York County (Karla Moskowitz, J.) entered August 19, 1999, which denied Cabrini Medical Center’s motion for summary judgment dismissing the claims against it premised upon negligence and respondeat superior, and granted the motion insofar as plaintiffs vicarious liability claim was premised upon apparent authority, should be modified, on the law, to the extent of granting the motion in its entirety, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant Cabrini Medical Center dismissing the complaint as against it. Footnotes [1] Plaintiff has abandoned her claim of negligent hiring as it was clearly without merit. Dr. Favara was hired after a thorough screening by the hiring committee that revealed, among other things, glowing references. [2] Seeking to escape the grasp of Judith M., the dissent analogizes this case to Sims v Bergamo (3 NY2d 531). This analogy is flawed. In Judith M., the dissenting Justices at the Appellate Division, pointing to Sims, raised the precise analogy now raised by the dissent here (249 AD2d 890, 891, supra). The Court of Appeals obviously rejected this analogy when it found that vicarious liability could not be imposed. [3] Insofar as the dissent seems to conclude that vicarious liability may be imposed pursuant to the apparent authority doctrine, this too is erroneous. “Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction” (Hallock v State of New York, 64 NY2d 224, 231). Invocation of the doctrine [40] requires that the party asserting the agency have justifiably relied on the representations of the principal (see, Bank v Rebold, 69 AD2d 481; Restatement of Agency [Second] § 267). Here, plaintiffs papers are devoid of any explanation as to how she relied upon a representation by Cabrini concerning Dr. Favara. Nor could plaintiff demonstrate such reliance since she was only semi-conscious when the assault began, and, immediately upon becoming lucid, did everything in her power to resist Dr. Favara. [4] Obviously the situation would be different if the hospital had permitted Dr. Favara to practice after he committed a prior sexual assault. In that case liability would be premised not on the failure of the recovery room nurses to monitor Dr. Favara but on the hospital’s negligence in hiring Dr. Favara or continuing to employ him. [5] On the appeal from the Appellate Division’s decision in Cornell, the Court of Appeals did not discuss the subject of foreseeability. Instead it focused on a different issue raised by the plaintiff on that appeal. An examination of.the briefs filed with the Court, however, shows that the negligence issues were raised. The Court of Appeals chose not to address them, other than to state: “As to plaintiff’s other contentions, we find them to be without merit” (46 NY2d 1032, 1034, supra).