Will the New York Court of Appeals expand the class of individuals to whom providers owe a duty of care?

April 24, 2015

Health Care Alert

Author(s): Laurie T. Cohen, Jena R. Rotheim

In a somewhat surprising move, the Court of Appeals has decided to hear an appeal, the result of which could significantly alter the longstanding law that generally restricts a health care provider’s duty of care to his or her patients. In Davis et al. v. South Nassau Communities Hospital et al., New York Court of Appeals No. APL-2014-00245 (Nassau County Clerk’s Index No. 1834/11), a third party attempts to assert a negligence claim against medical providers in order to recover for injuries he claims he sustained as a result of the defendants’ treatment of their patient.

On the morning of March 4, 2009, Lorraine Walsh presented at South Nassau Communities Hospital complaining of abdominal pain. The hospital administered to Ms. Walsh certain medications, including a narcotic, and then discharged her approximately an hour and a half later. The plaintiffs in this case claim that prior to discharge, the hospital instructed Ms. Walsh about her medical condition, but not about the medications or their effects. Approximately nineteen minutes after her discharge from the hospital, Ms. Walsh drove her car over the yellow lines and crashed head-on with a school bus driven by plaintiff Edwin Davis. Mr. Davis suffered catastrophic injuries, including multiple skull fractures and resulting traumatic brain injury, as well as exacerbation of multiple sclerosis that had been asymptomatic prior to the accident.

Mr. Davis and his wife initially asserted a medical malpractice claim against the hospital, physician and physician’s assistant, and the providers’ practice. When the defendants moved for dismissal based upon the absence of any patient-physician relationship, the plaintiffs cross-moved for leave to amend their complaint to add a cause of action for general negligence. [1] In sum, plaintiffs claimed that defendants should be liable for their injuries because they discharged Ms. Walsh in an impaired condition and failed to warn her of the dangers of driving in that condition. They further argued that this act or omission created a foreseeable risk to third parties travelling on the roads.

The trial court denied the plaintiffs’ cross-motion to amend and dismissed the action. In so doing, the court found that the doctors’ duty of care did not extent to the plaintiffs, and cited to the general rule that limits the provider’s duty of care to the patient, except in rare circumstances.

In affirming the trial court’s decision, the Appellate Division found, inter alia, no abuse by the trial court when it exercised its discretion to deny the motion to amend. Generally, there is no duty to control the conduct of a third party to prevent it from causing injury to another, even if a defendant could have exercised such control. Under special circumstances, courts have imposed a duty of care, however, when “there is sufficient authority and ability to control the conduct of third persons” and “where there is a special relationship: a relationship between defendant and the third person whose actions expose plaintiff to harm such as would require one defendant to protect the plaintiff from the conduct of others.” [2] The proposed amended complaint failed to allege that the defendants possessed sufficient authority and ability to control Ms. Walsh, which might support the imposition of a duty to protect Mr. Davis, and therefore, the court found that the proposed amended complaint was “palpably insufficient and patently devoid of merit.”

On September 23, 2014, the Court of Appeals granted plaintiffs’ motion for leave to appeal. The central issue on appeal is whether the state’s highest court is willing to expand significantly the scope of individuals to whom providers owe a duty. Specifically, whether the administration of narcotics and subsequent discharge of the patient created a special relationship between the providers and the general public such that the providers should be charged with a duty to protect third parties like Mr. Davis.

Just as interesting as the substantive issue on appeal is the fact that the Court of Appeals decided to hear the appeal in the first place. The plaintiffs did not have an automatic right to further appeal but, rather, review by the state’s highest court was permissive in this instance. Furthermore, it is not the sort of case that the Court of Appeals typically hears—cases concerning novel or compelling issues of public import, cases in which the lower court departed from the Court of Appeals’ precedent or cases involving issues upon which there is inconsistency between the departments of the Appellate Division. Though there can be no doubt that this case involves an issue of public import, there is nothing novel about it. The Court’s interest is this case, and the yet to be understood reasons that compelled the Court to review the case, have caught the attention of many parties.

Indeed, both the Medical Society of the State of New York and the American Medical Association submitted an amicus curiae brief. Not surprisingly, these professional associations remind the Court of Appeals of its longstanding precedent and urge that it not depart from it. They further stress that allowing the plaintiffs to bring their negligence claim will open the floodgates and expose providers to a prohibitive number of possible plaintiffs from a “practically limitless number of members of the public.”

Oral argument has not yet been scheduled on this appeal.

  1. The plaintiffs also moved to consolidate the action with two related actions. In the first related action, Mr. Davis sued Ms. Walsh. (Davis v. Walsh, Nassau County Supreme Court, Index No. 8405/09). In the second, Ms. Walsh sued the medical providers, hospital, and practice. (Walsh-Roman v. Hammock, M.D., et al., Nassau County Supreme Court, Index No. 23966/09). Those related actions are on the trial calendar.
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  2. The Second Department opinion is available online.
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