N.X. v. Cabrini Med. Ctr.
=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
—————————————————————–
1 No. 4
N. X.,
Appellant,
v.
Cabrini Medical Center,
Respondent,
et al.,
Defendant.
Charles Palella, for appellant.
Daniel S. Ratner, for respondent.
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
– 1 –
- 2 –
No. 4
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
– 2 –
- 3 –
No. 4
“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
1 The negligent hiring claim was withdrawn and plaintiff’s
attorney informed the court that the only remaining claims to be
considered were those for direct negligence and vicarious
liability. A default judgment was entered against Favara.
– 3 –
- 4 –
No. 4
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
2 The medical profession itself recognizes the entirely
personal motivation for such conduct (see, AMA Council on Ethical
& Judicial Affairs, Sexual Misconduct in the Practice of
– 4 –
- 5 –
No. 4
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
Medicine, 266 J.A.M.A. 2741, 2742 [1991] [“self-gratification is
the only basis for the behavior of physicians who engage in
sexual contact with incompetent or unconscious patients”]).
3 Plaintiff’s reliance on the doctrine of apparent
authority is also unavailing. Liability premised on apparent
authority, usually raised in a business or contractual dispute
context, arises where a third party reasonably relies upon the
– 5 –
No. 4
– 6 –
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
misrepresentation of an agent’s authority through conduct of the
principal (see, Hallock v State of New York, 64 NY2d 224, 231).
Plaintiff has made no showing that she relied on any
representation by Cabrini with respect to Favara.
– 6 –
No. 4
– 7 –
surveillance (see, Killeen v State of New York, 66 NY2d 850,
851). As with any liability in tort, the scope of a hospital’s
duty is circumscribed by those risks which are reasonably
foreseeable (see, Hamilton v Beretta U.S.A. Corp., 96 NY2d 222,
232; see also, DiPonzio v Riordan, 89 NY2d 578, 583).
Cabrini regards the sexual assault of a patient by a
physician having no known history of sexual misconduct as a risk
so remote that, as a matter of law, it can never be reasonably
foreseeable. We do not disagree with that general conclusion
insofar as it relates to the theoretical and unknown possibility
of an attack taking place in the absence of a defendant’s prior
knowledge of an employee’s dangerous propensities (see, e.g.,
Cornell v State of New York, supra [no hospital liability because
risk of sexual assault by attendant with clean record not
foreseeable]; see generally, Nallan v Helmsley-Spear, Inc., 50
NY2d 507, 519-520). However, this reasoning should not be used
in this case to preclude a hospital’s liability for actually
observed or readily observable misconduct committed in the very
presence of hospital employees. Thus, the question presented
here is whether the hospital’s nurses had a duty to protect
plaintiff once there were acts or events suggesting that an
assault or unauthorized “examination” was about to take place —
and did take place — in their presence.
In our view, plaintiff has identified several unusual
circumstances surrounding Favara’s appearance in the recovery
– 7 –
- 8 –
No. 4
room that should have alerted the nurses that plaintiff was in
obvious jeopardy of imminent harm. Plaintiff’s family physician
affirmed that he was familiar with Cabrini’s practices and that
residents, such as Favara, are seldom called to the recovery
room. Nurse Reyes acknowledged that residents were not directly
assigned to the recovery room. Her deposition testimony further
indicated that she was aware of the identity of all of
plaintiff’s physicians, and that Favara was not one of those
assigned to plaintiff’s care. In fact, all of the nurses in the
recovery room were unacquainted with Favara. Reyes also admitted
that she saw Favara enter the recovery room and proceed directly
to plaintiff’s bedside. Moreover, although the nurses maintained
that they never saw Favara wear, remove or dispose of any gloves
in the recovery room, gloves were available near plaintiff’s bed
and plaintiff in her affidavit asserted that after the assault,
she observed blood on the doctor’s gloves.
All of the nurses knew of the hospital’s policy
requiring the presence of a female staff member during a male
physician’s pelvic examination of a female patient. Indeed,
Cabrini concedes that the result below “might be different if a
nurse had observed a violation of [its] policy and failed to
intervene” (Def’s Brf, at 27). Thus, a fact-finder could
reasonably conclude that the nurses, who concededly knew that an
internal examination was contraindicated for plaintiff, were on
notice that an unknown doctor wearing surgical gloves — usually
– 8 –
- 9 –
No. 4
worn for internal examinations — approached plaintiff’s bedside
ostensibly intent on examining her.
According to plaintiff’s testimony, Favara pulled up
her gown, ordered her to open her legs and then instructed her
to open them wider. She repeatedly asked him to stop as he began
the examination. Despite the nurses’ assertions that they saw or
heard nothing, an additional key question of credibility arises
from the inference created by the undisputed close proximity of
all of the nurses to plaintiff’s bed. The entire recovery room
was approximately 18 by 14 feet, and contained four beds, each of
which was only about two feet from the adjacent bed; only two of
the beds were occupied. The curtain between plaintiff’s bed,
which was nearest the wall, and that of the second patient was
not drawn.
Although her back was turned to plaintiff, Nurse Reyes
was only three to four feet from the foot of plaintiff’s bed —
easily within earshot — as Reyes filled in the second patient’s
chart. She observed Favara pass her and go to plaintiff’s bed.
Nurse Gamboa was situated between the second and third beds in
the room, facing the patient in the second bed. Given the
arrangement of the room, she would also have been facing the
first, uncurtained bed, where plaintiff was located. Indeed,
Nurse Gamboa admitted that nothing obstructed her view of
plaintiff’s bed. Notably, at her deposition, Nurse Gamboa
initially testified that she had overheard conversation between
– 9 –
- 10 –
No. 4
plaintiff and Favara while she was at the bedside of the second
patient. Finally, there is some disagreement as to the length of
time Favara was in the room. Nurse Reyes testified it was less
than a minute, although she also claimed she had time to fill in
a multiple-entry, seven page chart for the other patient.
In our view, contrary to the Appellate Division
majority, this confluence of factors provides a sufficient basis
from which a jury could determine that the nurses unreasonably
disregarded that which was readily there to be seen and heard,
alerting them to the risk of misconduct against plaintiff by
Favara, which could have been prevented.
We emphasize that our holding today does not establish
a broader duty than that historically placed upon hospitals to
their patients. Our holding does not impose a “gatekeeping”
function upon nurses to stop and question physicians, ascertain
reasons for their presence, or to stand guard and monitor their
interactions with patients. We simply hold that observations and
information known to or readily perceivable by hospital staff
that there is a risk of harm to a patient under the circumstances
can be sufficient to trigger the duty to protect. This common-
sense approach safeguards patients when there is reason to take
action for their protection and does not burden the practice of
medicine or intrude upon the traditional relationship between
doctors and nurses (see, Toth v Community Hosp. at Glen Cove, 22
NY2d 255, 265, rearg denied 22 NY2d 983).
– 10 –
- 11 –
No. 4
Accordingly, the Appellate Division order should be
modified, with costs to plaintiff, by remitting to Supreme Court
for further proceedings in accordance with this Opinion and, as
so modified, affirmed.
* * * * * * * * * * * * * * * * *
Order modified, with costs to plaintiff, by remitting to Supreme
Court, New York County, for further proceedings in accordance
with the opinion herein and, as so modified, affirmed. Opinion
by Judge Wesley. Chief Judge Kaye and Judges Smith, Levine,
Ciparick, Rosenblatt and Graffeo concur.
Decided February 14, 2002
– 11 –