| Dray v Staten Is. Univ. Hosp. |
| 2018 NY Slip Op 02314 [160 AD3d 614] |
| April 4, 2018 |
| Appellate Division, Second Department |
[*1]
| Rinat Dray, Appellant-Respondent, v Staten IslandUniversity Hospital et al., Respondents-Appellants, and Leonid Gorelik et al.,Respondents. |
Silverstein & Bast, New York, NY (Michael M. Bast, Charles Silverstein, and AnatGrosfeld of counsel; Morton Bast on the brief), for appellant-respondent.
Gerspach Sikoscow LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Caryn L. Lilling andKathryn M. Beer], of counsel), for respondents-appellants.
Belair & Evans, LLP, New York, NY (John T. Evans and Elan J. Schefflein of counsel),for respondents.
Katharine Bodde, New York, NY (Mirah Curzer and Bridgette Dunlap of counsel), foramicus curiae New York City Bar Association.
Nancy Rosenbloom, New York, NY (Farah Diaz-Tello and Lynn M. Paltrow of counsel), foramicus curiae National Advocates for Pregnant Women.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from (1) so much of an order of the Supreme Court, Kings County (LauraLee Jacobson, J.), dated May 12, 2015, as denied that branch of her cross motion which was forsummary judgment on the issue of liability on the fourth cause of action, and (2) so much of anorder of the same court dated October 29, 2015, as denied that branch of her cross motion whichwas for summary judgment on the issue of liability on the second cause of action, and, uponconverting those branches of the motion of the defendants Staten Island University Hospital andJames J. Ducey, and the separate motion of the defendants Leonid Gorelik and MetropolitanOB-GYN Associates, P.C., which were pursuant to CPLR 3211 (a) (5) to dismiss the first,second, and third causes of action insofar as asserted against each of them as time-barred tomotions for summary judgment, granted those branches of the motions to the extent ofdismissing the third cause of action and so much of the first and second causes of action as werebased on an allegation that the defendants performed a cesarean section upon her despite herobjection, and the defendants Staten Island University Hospital and James J. Ducey cross-appeal,as limited by their brief, from (1) so much of the order dated May 12, 2015, as denied that branchof their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of actioninsofar as asserted against them for failure to state a cause of action, and (2) so much of the orderdated October 29, 2015, as, upon converting those branches of their motion which were pursuantto CPLR 3211 (a) (5) to dismiss the first, second, and third causes [*2]of action as time-barred to a motion for summary judgment, deniedthat branch of the motion which was for summary judgment dismissing, as time-barred, so muchof the first cause of action insofar as asserted against them as was based on their alleged failure tosummon a patient advocate group and bioethics panel.
Ordered that the order dated May 12, 2015, is affirmed insofar as appealed from and reversedinsofar as cross-appealed from, on the law, without costs or disbursements, and that branch of themotion of the defendants Staten Island University Hospital and James J. Ducey which waspursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar as asserted againstthem for failure to state a cause of action is granted; and it is further,
Ordered that the order dated October 29, 2015, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The plaintiff, who previously had given birth to two children via cesarean section (hereinafterc-section), opted to attempt a vaginal birth when she became pregnant with her third child. Theplaintiff arrived at the defendant Staten Island University Hospital (hereinafter the hospital) onJuly 26, 2011, experiencing contractions. The plaintiff was examined by the defendant LeonidGorelik, of the defendant Metropolitan OB-GYN Associates, P.C. (hereinafter Metropolitan),who informed the plaintiff that a c-section was necessary. However, the plaintiff refused toconsent to a c-section, insisting upon a vaginal birth. Gorelik consulted with the defendant JamesJ. Ducey, the hospital's director of obstetrics, and Arthur Fried, the hospital's general counsel.Ducey, with the concurrence of Gorelik and Fried, determined that there was insufficient time toseek a court order, and that he would override the plaintiff's refusal to consent and proceed with ac-section. A c-section was performed on the plaintiff by Gorelik, Ducey, and several residents.During the procedure, the plaintiff's bladder was lacerated, and the laceration was repaired.
On January 22, 2014, the plaintiff commenced this action, inter alia, to recover damages fornegligence, medical malpractice, and violations of Public Health Law § 2803-c and10 NYCRR 405.7. The plaintiff alleged, among other things, that the defendants were negligentin performing a c-section upon her without her consent, in failing to summon the hospital'spatient advocate and bioethics department to assist her, in determining that a c-section wasnecessary, and in lacerating her bladder.
The hospital and Ducey moved, and Gorelik and Metropolitan separately moved, pursuant toCPLR 3211 (a) (5) and (7) to dismiss portions of the amended complaint insofar as assertedagainst each of them. They argued, inter alia, that portions of the first and second causes ofaction, and the entire third cause of action, should be dismissed as time-barred, and that thefourth cause of action should be dismissed for failure to state a cause of action. The plaintiffcross-moved for summary judgment on the issue of liability. In an order dated May 12, 2015, theSupreme Court, among other things, converted those branches of the defendants' respectivemotions which were to dismiss portions of the first and second causes of action, and the entirethird cause of action, as time-barred to motions for summary judgment, and held those branchesof the motions in abeyance to allow the parties to file supplemental papers. The court also deniedthose branches of the defendants' respective motions which were to dismiss the fourth cause ofaction for failure to state a cause of action, denied that branch of the plaintiff's cross motionwhich was for summary judgment on the fourth cause of action, and held the rest of the plaintiff'scross motion in abeyance. The plaintiff appeals, and the hospital and Ducey cross-appeal, fromthe order dated May 12, 2015.
After the parties filed supplemental papers, in an order dated October 29, 2015, the SupremeCourt, among other things, granted those branches of the defendants' converted motions whichwere for summary judgment dismissing, as time-barred, the entire third cause of action and somuch of the first and second causes of action as were based on an allegation that the c-sectionwas performed upon the plaintiff despite her objection, denied those branches of the defendants'converted motions which were for summary judgment dismissing, as time-barred, so much offirst cause of action as was based on the defendants' alleged failure to summon a patientadvocacy group and bioethics panel, and denied that branch of the plaintiff's cross motion whichwas for summary [*3]judgment on the issue of liability on thesecond cause of action. The plaintiff appeals, and the hospital and Ducey cross-appeal, from theorder dated October 29, 2015.
Contrary to the plaintiff's contention, the Supreme Court properly granted those branches ofthe defendants' separate motions which were for summary judgment dismissing, as barred by theone-year statute of limitations for intentional torts (see CPLR 215 [3]), the entire thirdcause of action and so much of the first and second causes of action as were based on anallegation that the defendants performed a c-section upon the plaintiff despite her objection. Indetermining which limitations period is applicable to a given cause of action, the court must lookto the substance of the allegations rather than to the characterization of those allegations by theparties (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Tong v Target, Inc., 83 AD3d1046 [2011]; Doe v Jacobs, 19AD3d 641, 642 [2005]; Rutzinger v Lewis, 302 AD2d 653, 654 [2003]). Here, thedefendants each established, prima facie, that the one-year statute of limitations for intentionaltorts applied (see De La Cruz vNour, 134 AD3d 883, 884 [2015]; Fragosa v Haider, 17 AD3d 526, 527 [2005]; Cerilli v Kezis, 16 AD3d 363[2005]; Cross v Colen, 6 AD3d306 [2004]). The plaintiff's allegation that the defendants performed an unauthorizedprocedure upon her is an allegation of intentional conduct rather than conduct that can beconstrued as a deviation from a reasonable standard of care (see Messina v Alan Matarasso,M.D., F.A.C.S., P.C., 284 AD2d 32, 35 [2001]). In opposition, the plaintiff failed to raise atriable issue of fact. The plaintiff could not avoid the running of the limitations period byattempting to couch the claim as one sounding in negligence, medical malpractice, or lack ofinformed consent (see Tong v Target, Inc., 83 AD3d at 1046-1047; Smith v County ofErie, 295 AD2d 1010, 1010-1011 [2002]; Wertzberger v City of New York, 254AD2d 352 [1998]).
To the extent that the second cause of action was based on an allegation that the defendantscommitted medical malpractice, the plaintiff failed to establish her prima facie entitlement tosummary judgment on the issue of liability. While the plaintiff alleged that the defendantscommitted medical malpractice when they lacerated her bladder during the c-section, she did notpresent any expert medical testimony indicating that the laceration of her bladder was caused bya deviation from the applicable standard of care (see Koster v Davenport, 142 AD3d 966, 968 [2016]; Deadwyler v North Shore Univ. Hosp. atPlainview, 55 AD3d 780, 781 [2008]; Harper v Findling, 38 AD3d 601, 601-602 [2007])." 'Expert testimony is necessary to prove a deviation from accepted standards of medicalcare and to establish proximate cause' " (Nichols v Stamer, 49 AD3d 832, 833 [2008], quoting Lyons vMcCauley, 252 AD2d 516, 517 [1998]; see Berger v Becker, 272 AD2d 565, 566[2000]; Lasek v Nachtigall, 189 AD2d 749 [1993]).
Although the plaintiff submitted expert testimony that the defendants deviated from thestandard of care when they determined that the plaintiff needed a c-section, in opposition, thehospital and Ducey submitted the redacted affirmation of an obstetrician/gynecologist whoopined that the c-section was indicated given the plaintiff's prolonged labor, the fetal heart ratepattern, and the increasing potential for uterine rupture. Gorelik and Metropolitan submitted anaffidavit of an obstetrician/gynecologist who opined that the fetal heart tracings showed cause forconcern, despite appropriate measures taken to correct the fetal status. The expert opined that thedecision to recommend a c-section was appropriately made. "Summary judgment is notappropriate in a medical malpractice action where the parties adduce conflicting medical expertopinions" (Feinberg v Feit, 23AD3d 517, 519 [2005]). Accordingly, the Supreme Court properly denied that branch of theplaintiff's cross motion which was for summary judgment on the issue of liability on so much ofthe second cause of action as was based upon the defendants' alleged malpractice in determiningthat a c-section was necessary, and in lacerating the plaintiff's bladder.
Contrary to the contention of the hospital and Ducey, the Supreme Court properly denied thatbranch of their converted motion which was for summary judgment dismissing so much of thefirst cause of action insofar as asserted against them as was based on their alleged failure tosummon a patient advocate group and bioethics panel as duplicative of the untimely allegationssounding in battery. Assuming that they state a cause of action, the allegations that the hospitaland Ducey failed to provide the plaintiff with the assistance of the patient advocate group andbioethics panel are not duplicative of the allegations sounding in battery because they are notbased on intentional conduct, but on negligence (see De La Cruz v Nour, 134 AD3d 883, 884-885 [2015]; Greenv [*4]Emmanuel African M.E. Church, 278 AD2d 132[2000]).
The fourth cause of action is predicated on alleged violations of Public Health Law§ 2803-c (3) (e) and 10 NYCRR 405.7 (b) (10), specifically, the deprivation of theplaintiff's right to refuse treatment. Public Health Law § 2803-c is entitled "Rightsof patients in certain medical facilities" (emphasis added). Public Health Law§ 2803-c (2) specifies that the statute applies to "nursing home[s]" and "facilit[ies]providing health-related service," which it states are defined in Public Health Law§ 2801 (2) and (4) (b), respectively. Public Health Law § 2801 (2)defines a "nursing home" as "a facility proving nursing care . . . in addition tolodging and board or health-related service," while Public Health Law § 2801 (1)separately defines a "hospital" as, inter alia, "a facility or institution engaged principally inproviding services by or under the supervision of a physician." Public Health Law§ 2801 (4) (b) defines "health-related service" as service in facilities which "provideor offer lodging, board and physical care," while Public Health Law § 2801 (4) (a)separately defines "hospital service" as, among other things, the "preadmission, out-patient,in-patient and post discharge care provided in or by a hospital." Accordingly, it is clear from thestatutory scheme that Public Health Law § 2803-c was not intended to apply tohospitals.
Public Health Law § 2801-d authorizes a private right of action by patients of"residential health care facilities" for the violation of rights enumerated in Public Health Law§ 2803-c. "Residential health care facility" is defined by the statute as "a nursinghome or facility providing health-related service" (Public Health Law § 2801 [3]).Since the hospital is not a "residential health care facility," this provision is not applicable to thehospital (see Novick v South NassauCommunities Hosp., 136 AD3d 999, 1001 [2016]; Burkhart v People, Inc., 129 AD3d 1475, 1477 [2015]). The factthat the legislature did not specify that a private right of action was available against hospitalsindicates that providing a private right of action to hospital patients was contrary to thelegislative scheme. Therefore, no private right of action under the Public Health Law should beinferred (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]; Cunningham v Newman, 81 AD3d440 [2011]).
10 NYCRR 405.7, entitled "Patients' Rights," is a regulation promulgated by the New YorkState Department of Health which requires that patients be afforded certain rights. 10 NYCRR405.7 does apply to hospitals, but no private right of action arising from an alleged violation ofthat regulation has been recognized. Although a violation of that regulation may be cited insupport of a medical malpractice cause of action based upon a violation of a standard of care, aviolation of that regulation does not give rise to an independent private right of action (seeMcDonald v New York City Health & Hosps. Corp., 203 AD2d 6 [1994]; McNair vNew York City Dept. of Corr. Comm., 2017 US Dist LEXIS 146829 [SD NY, Sept. 8, 2017,No. 16-cv-2778 (LAD)]; Walters v New York City Health Hosp. Corp., 2005 WL324242, *3, 2005 US Dist LEXIS 1895, *8 [SD NY, Feb. 9, 2005, No. 02 Civ 751(DF)];Armstrong v Brookdale Univ. Hosp. & Med. Ctr., 2002 WL 13222, 2002 US DistLEXIS 29224 [ED NY, Jan. 3, 2002, No. 98 CV 2416 (SJ)]). Accordingly, the Supreme Courtshould have granted that branch of the motion of the hospital and Ducey which was pursuant toCPLR 3211 (a) (7) to dismiss the fourth cause of action insofar as asserted against them.
The plaintiff's remaining contentions either are without merit or need not be addressed inlight of our determination. Leventhal, J.P., Hinds-Radix, LaSalle and Brathwaite Nelson, JJ.,concur.