Diaz v. New York Downtown Hospital

—Order, Supreme Court, New York County (Edward H. Lehner, J.), entered January 12, 2000, which denied defendant hospital’s motion for summary judgment dismissing plaintiffs claim for damages for negligent supervision, reversed, on the law, without costs, summary judgment granted to defendant hospital and the complaint dismissed as to it. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it. The motion court erred in denying the hospital summary judgment on plaintiffs negligent supervision claim, since the hospital sufficiently demonstrated that it was not reasonably foreseeable that its independent contractor’s employee would sexually assault plaintiff while conducting her vaginal sonogram.' The record shows and the plaintiff conceded that the employee had been duly screened and his background sufficiently checked by Progressive, the independent contractor, and that there was “nothing as to [the employee’s] background that would have placed [defendant] on notice of or alerted it to a potential propensity for violence or sexual abuse” (Rodriguez v United Transp. Co., 246 AD2d 178, 180). Once the hospital established, and plaintiff failed to rebut, the lack of reasonable foreseeability based on the background check, it was entitled to judgment as a matter of law on a claim for negligent supervision (Rodriguez v United Transp. Co., supra at 180-182; Ray v County of Delaware, 239 AD2d 755, 757; N. X. v Cabrini Med. Ctr., 280 AD2d 34, 42; see also, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933-934; Mataxas v North Shore Univ. Hosp., 211 AD2d 762, 763; see also, Kladstrup v Westfall Health Care Ctr., 183 Misc 2d 11, 13-15). Plaintiffs further contention that the hospital was negligent in failing to adopt or follow what was allegedly the sole reasonably safe operating procedure in these circumstances, having a female observer present, is without merit. As this record discloses, the procedure cited by plaintiffs expert was merely a recommendation by two professional organizations, not a customary practice or industry standard. Nowhere in the cited literature of the American College of Radiology (ACR) and the [358] American Institute of Ultrasound in Medicine (AIUM) does it state that a female must be present during a vaginal sonogram. Rather, the guidelines are couched in advisory terms. The ACR literature states “it is recommended that a woman be present” during such a procedure, while the AIUM guidelines provide that “a female member * * * should be present, when possible.” Such wording falls well short of establishing the “accepted standard of care” alleged by plaintiffs expert. Certainly had these two august, allegedly nationally prominent professional organizations intended to impose a significant industry safety standard, binding on all members/practitioners nationwide, they would have done so in more obligatory terms. It should be presumed that they stated what they intended, a non-binding, suggested procedure, and nothing more. Notably, in asserting this alleged industry standard, the affidavit of plaintiffs expert relies solely on the written guidelines, to the complete exclusion of any evidentiary facts supporting an actual custom or practice of radiology. Indeed, the expert’s affidavit is barren of any mention of an actual radiological practice of requiring a woman’s presence during vaginal sonograms. To be contrasted are those situations where a plaintiff offers expert evidence of actual customary practices or safety procedures to establish an industry standard. (See, Miller v Long Is. R. R., 212 AD2d 515, 516 [error to preclude plaintiffs expert evidence regarding custom, practice and feasibility of closing train’s doors prior to departing station]; French v Ehrenfeld, 180 AD2d 895, 896 [error to preclude plaintiff’s expert evidence of customary and usual practice of having chimney inspected prior to hookup with heating system].) Although noncompliance with such a customary practice or industry standard may be evidence of negligence (see, Trimarco v Klein, 56 NY2d 98, 105-107), the failure to abide by guidelines or recommendations that are not generally accepted standards in an industry will not suffice to raise an issue of fact as to a defendant’s negligence. (See, Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346, 347 [failure to comply with State University’s Manual of Planning Standards did not raise issue of fact where no evidence that planning standards were generally reflective of a generally accepted safety practice]; Ray v County of Delaware, 239 AD2d 755, 757 [mere interposition of safeguard checklist to limit sexual exploitation by therapists, attributed to a licensed psychologist, was inadequate to raise an issue of fact in negligent supervision case].) Accordingly, plaintiff cannot convert these industry recom [359] mendations to an industry standard in order to avoid summary judgment. Concur — Sullivan, P. J., Nardelli and Williams, JJ.