Opinion
Index No. 901555-19
07-10-2023
Dawn McGrath, Plaintiff, v. Clarence White, ST. PETER'S HEALTH PARTNERS, ST. PETER'S HOSPITAL AND ST. PETER'S ADDICTION RECOVERY CENTERS, Defendants.
Bartlett, Pontiff, Stewart & Rhodes, P.C. Attorneys for Plaintiff By: Jeffrey Shapiro, Esq. Phelan, Phelan, & Danek, LLP Attorneys for Defendant Clarence White By: Timothy S. Brennan Schwab & Gasparini, PLLC Attorneys for St. Peter's Hospital St. Peter's Health Partners, and St. Peter's Addiction Recovery By: Brianne M. Carbonaro, Esq.
Unpublished Opinion
Bartlett, Pontiff, Stewart & Rhodes, P.C.
Attorneys for Plaintiff
By: Jeffrey Shapiro, Esq.
Phelan, Phelan, & Danek, LLP
Attorneys for Defendant Clarence White
By: Timothy S. Brennan
Schwab & Gasparini, PLLC
Attorneys for St. Peter's Hospital
St. Peter's Health Partners, and
St. Peter's Addiction Recovery
By: Brianne M. Carbonaro, Esq.
David A. Weinstein, Acting Supreme Court Justice
Plaintiff Dawn McGrath commenced this action on March 18, 2019, asserting causes of action for intentional infliction of emotional distress, assault and medical malpractice against defendant Clarence White, a psychiatrist, whom she alleged was employed by defendant St. Peter's Addiction Recovery Center ("SPARC") and defendant St. Peter's Hospital, which are operated by defendant St. Peter's Health Partners (collectively the "St. Peter's Defendants") (Complaint ¶¶ 1-3, 37-58). The complaint also alleges a cause of action for medical malpractice against the St. Peter's Defendants based on a theory of vicarious liability, due to their purported employment of defendant White (id. ¶¶ 59-64).
In an amended complaint filed on October 29, 2022, plaintiff added new causes of action against the St. Peter's Defendants for negligent hiring, training, and supervision, as well as respondeat superior and an additional claim of medical malpractice based on an allegation that, on or about January 2, 2019, the St. Peter's Defendants prematurely discharged plaintiff from her treatment program, despite being notified that she was in crisis and in danger of a relapse into illicit drug use (Amended Complaint ¶¶ 63-112). The allegations underlying the negligent hiring claim were that Defendant White disclosed to St. Peter's Health Partners that he was terminated from his previous employment, the St. Peters Defendants failed to investigate the circumstances of such, and had they done so it "would have revealed complaints against Defendant White stemming from an inappropriate sexual relationship with a patient he was treating at Cayuga Medical Center and which led to Defendant's termination" (id. ¶¶ 94-96). This, in turn, would have demonstrated White's "propensity to act in an inappropriate and unprofessional manner with respect to his patients" (id. ¶ 97).
These claims (except the claim for premature discharge) all arose out of an alleged verbal altercation that occurred on March 22, 2018, when McGrath attempted to attend her 2:30 p.m. appointment with defendant White, who was to be her new psychiatrist (Amended Complaint ¶¶ 13-15). After waiting for over a half hour at SPARC to meet with White, plaintiff made a new appointment with another physician (id. ¶¶ 16-18). According to the complaint, at the time of the appointment White emerged from his office and verbally abused and berated McGrath, and continued to do so despite her attempts to get away from him (id. ¶¶ 19-21). White is then alleged to have approached plaintiff "in a confrontational and threatening manner," which caused plaintiff to leave the building while White continued to berate her in front of SPARC administrative staff (id. ¶¶ 22-25).
McGrath alleges that when she reached her car, she was too upset to drive and called the SPARC office to make a complaint (id.). SPARC staff asked her to return to the facility to speak with another doctor (id. ¶ 27). Upon returning to SPARC, however, she was again confronted by White, who continued to verbally abuse her (id. ¶¶ 29-30). Plaintiff then entered the reception area; White followed and stood extremely close to plaintiff, invading her personal space while continuing to scream expletives, making McGrath upset and leading her to believe that White might strike her (id. ¶¶ 32-35). Eventually, another SPARC doctor intervened and removed plaintiff from the reception area to another office (id. ¶¶ 38-39). After waiting for White to leave the facility, plaintiff walked to her car and suffered an anxiety attack due to White's behavior (id. ¶ 43).
Plaintiff contends that her experience with White has caused her to suffer post-traumatic stress disorder ("PTSD"), extreme anxiety, and depression (Amended Complaint ¶ 50). She further states that, in the months following the incident, her mental condition worsened and on or about January 2, 2019, she informed SPARC staff that she was considering calling her drug dealer and had cut herself on her inner forearm the night before (id. ¶¶ 56-57). Plaintiff asserts that SPARC - rather than provide further treatment - e-mailed her a copy of a certificate of completion for her detoxification program (id. ¶ 58). Despite her subsequent e-mail requests to remain in the program due to her struggles, SPARC never responded (id. ¶¶ 60-62).
Issue was joined and discovery is now complete. Before me are summary judgment motions from both White and the St. Peter's Defendants.
Defendants' Moving Papers
Defendant White is seeking summary judgment on plaintiff's causes of action for intentional infliction of emotional distress and assault (Memorandum of Law in Support of Clarence White's Motion for Summary Judgment, dated January 16, 2023 ["White MOL"]; Attorney Affirmation in Support of Clarence White's Motion for Summary Judgment of Timothy S. Brennan, Esq., dated January 16, 2023 ["Brennan Aff"]). The St. Peter's Defendants have joined in defendant White's motion, and further contend that there was no physician/patient relationship between plaintiff and White to support any medical malpractice claim, that the discharge of plaintiff from SPARC did not violate the standard of care, and that the causes of action for the negligent hiring of White and the negligent discharge of plaintiff from the SPARC treatment program must be dismissed as they are not supported by any record evidence (Supplemental Attorney Affirmation in Support of in Support of Motion for Summary Judgment ["Supp Aff"] ¶ 2; Attorney Affirmation in Support of Motion for Summary Judgment ["Carbonaro Aff"] ¶¶ 40-60). In addition, the St. Peter's Defendants argue that they cannot be held vicariously liable for any intentional tortious acts that may have been committed by White against plaintiff, as such were outside the scope of his employment (Supp Aff ¶¶ 3-7).
In support of their respective motions, defendants have offered several deposition transcripts, including that of White ("White Tr"); McGrath (McGrath's March 8, 2021 deposition ("Pl Tr1") and July 26, 2022 deposition ("Pl Tr2")); and SPARC employees Akuba Arthurton ("Arthurton Tr"); Melissa Weimer ("Weimer Tr") and Carly Stargensky ("Stargensky Tr") (Carbonaro Aff, Exs G, H, J, L; Brennan Aff, Exs F, G, I, J), along with an expert affidavit from Ana N. Cervantes, MD ("Cervantes Aff"), and plaintiff's medical records from SPARC, dating from December 2017 through August 8, 2018, and her records from St. Peter's Central Avenue Outpatient Clinic, dating from December 20, 2017 through August 21, 2018 (Carbonaro Aff, Exs I, K, M and N). White also provided a copy of plaintiff's statement to the New York State Justice Center for the Protection of People with Special Needs (the "Justice Center") on April 10, 2019 (Brennan Aff, Ex H ["Justice Center Statement" or "Statement"]).
Plaintiff's medical records were submitted to the Court on a flash drive containing three data files for in camera review, but were not filed with the Clerk of the Court due to privacy concerns (Carbornaro Aff ¶ 55, Ex N parts 1-3).
The evidence is summarized as follows:
Dawn McGrath
Plaintiff's April 10, 2019 Justice Center Statement
Following the incident with White, a complaint was submitted to the Justice Center, which triggered an investigation. As part of that investigation, McGrath was interviewed by a Justice Center investigator on April 10, 2019, and gave her statement of what transpired between herself and White (Statement at 2-3). That statement provided the following account:
On the date at issue, plaintiff had an appointment with White, but SPARC staff called her earlier in the day to move the session from 3:00 to 2:30 p.m. (id. at 3). Plaintiff arrived at SPARC at approximately 2:25 p.m., checked-in with the staff person at the registration window, Akuba Arthurton, and took a seat in the waiting area (id.). After waiting approximately fifteen minutes without being seen - a problem she had with her prior psychiatrist - McGrath returned to the reception window and told Arthurton that she would wait a "couple more minutes" but had to leave at 3:00 p.m. (id. at 4). She sat in the waiting area for a few more minutes and then asked, "does he know I'm here[?]," to which Arthurton replied "yes" (id. at 5). Another fifteen minutes passed and she again returned to the reception window, when according to McGrath:
"[T]his gentleman comes out... this person interrupts and says, so that's it? You're just going to do me like this?... [S]o I looked at him, and I was just like - and he is looking right at me, and I have no idea who this person is..." (id. at 5-6).
******
"So I look and when I go what, and he goes, you are just going to do me like that? You're just going to leave and like he made some like gesture with his hand like almost like making fun... and I looked at him, and I go, do I know you? And I looked back at Akuba, and I was just like - I go get away from me. I go who are you? Because I thought it was a patient... like a crazy patient... and I go, are you the doctor?" (id. at 7).
McGrath asserted that she had never seen this man before (id. at 6-7).
McGrath asked, "are you my doctor[?]," to which the individual replied: "I was, but you are too busy" (id.). Plaintiff responded, "[y]ou are my doctor, and you are talking to me like that?" White then "took a couple steps closer to [her]" and she said, "[Y]ou are 30 minutes late. You don't even introduce yourself, and... you are acting like a weirdo" (Statement at 8). In response, White mocked her, stating "aw, boo hoo... I'm 30 minutes late. Who cares?" (id.). She told him that he should apologize, but White asserted that he had not done anything to warrant an apology, and she could not possibly have anything else to attend to that day (id. at 8-9). McGrath said she "stood there with my mouth open, and he started... laughing at me" (id. at 9).
Plaintiff stated that during this exchange she was in the waiting area and White stood behind the reception window (id.). Soon after, he opened the door to the waiting area and stepped through, standing next to McGrath (id. at 10). She told Arthurton that she would reschedule the appointment later, and told White that he was "crazy" (id.). According to McGrath, White "kept berating [her] as [she] was leaving" (id.). She walked out of SPARC and back to her vehicle, but was "shaking" and claimed that she was physically unable to start her truck (id. at 11). She phoned SPARC and told Arthurton that she would speak to others at SPARC about what had happened (id.).
As plaintiff re-entered SPARC's offices, she was met again by White, who she believed had left for the day (id. at 12). He again mocked her for getting upset at his being late for their appointment (id.). Plaintiff told him he was "insane," and he responded by calling her a "junkie" (id.). When McGrath pointed out that he was not "sorry" for his conduct, White said, "why would I apologize to a junkie like you" (id. at 13). She told White to get away from her and proceeded to "run" down the hallway, but he followed and continued to say "horrible things," causing McGrath to advise him that she was going to report his behavior to SPARC (id.). According to plaintiff, White retorted - with a laugh - "nobody is going to believe you because you're nothing but a junkie" (id.).
McGrath returned to the waiting room with White following (id.). Arthurton was not there, and McGrath asked the staff member present to "get somebody" since White "won't leave me alone" (id. at 14). At this point, plaintiff described White as positioning himself "right in [her] face," continuing to state: "nobody is going to believe you... all this over 20 minutes of your time. Like you have something better to do" (id.). McGrath responded by telling White to "get the fuck away" from her, to which White responded,"fuck you... and then he said other stuff" (id.). When other staff began approaching the reception desk, White left the waiting area (id.). According to plaintiff, the entire incident lasted approximately twenty minutes (id. at 18).
McGrath said that she was particularly upset about being called a "junkie," and worried that the SPARC staff might also view her as a "junkie" and believe her time was not valuable (id. at 16). The investigator inquired whether McGrath thought White might hit her and she said: "Yes. I didn't know what he was going to do because he was acting so crazy" (id. at 19).
Plaintiff's Depositions
At her depositions, plaintiff described the events of March 22, 2018 in a manner largely consistent with her Justice Center statement. At her initial deposition, McGrath asserted that her wait time to meet with Dr. White was forty minutes (Pl Tr1 66). She said that after the first twenty minutes, she decided to reschedule but White interrupted her (id. at 66-67). She never had a treatment session with this newly assigned psychiatrist, nor did he prescribe her any medication or other treatment, or even take her medical/psychiatric history (id. at 67, 69).
McGrath stated that when she called from her car, Arthurton told her that White had left for the day and she should come back into SPARC (Pl Tr2 at 20, 60-61). As in her statement, she described White as verbally attacking her upon her return, including by calling her a "fucking junkie," and telling her "fuck you" after he followed her into the waiting room (id at 20-22.). Plaintiff said that, at the time, she thought White was going to hit her, and this is why she ran to the reception area (id. at 24). She said that while they were in the reception area, White invaded her personal space and pushed close enough to her to brush against her left shoulder and breathe in her ear (id. at 67-68).
McGrath said that when she first saw White, she did not recognize him as a doctor and thought he might be a patient (id. at 57). She had no interaction with White except the March 22 meeting in the hallway and the reception area at SPARC, and as a result of that experience, she refused to meet with him again (id. at 59-60). In November 2018, she started treating with a new therapist she referred to as "Tracy," and thus she believed that her discharge from SPARC may have occurred in October, rather than December 2018 (id.). Upon being discharged, SPARC's staff advised her that she had completed her course of treatment (id.).
Clarence White Deposition
White testified that on March 22, 2018, he was employed as a psychiatrist by St. Peter's Hospital and provided psychiatric services at SPARC, at its Albany location (White Tr 59). He reported to the SPARC clinic once a week to see patients (id. at 63-64, 78-79). He saw new-to-clinic patients, and had follow-up appointments for existing patients (id. at 65). White's practice was to call each patient from the waiting room back to his office where he would interview the individual during the session (id. at 65-66). At follow-up appointments, there would be a chart with notes that he would review during the meeting (id. at 65). A meeting with a new patient, however, required White to take the person's entire history and perform a physical exam, and he did not have time to review the chart in advance of the meeting (id. at 65, 67). At the time of the incident, White had been to SPARC three times in three consecutive weeks and had met with only fifteen patients prior to meeting with McGrath (id. at 70-71). He said that there was no file on McGrath for his review on March 22 (id. at 66-67).
White explained that he considered a person to be under his psychiatric care only after he had a chance to meet with the individual in his office for a private session, where he would review the patient file for discussion, evaluation and treatment (id. at 74-78). As White put it: "[T]here is no patient-doctor relationship in the waiting room. The patient-doctor relationship begins in the examining room" (id. at 79). Prior to meeting plaintiff on March 22, White testified that he had not spoken with anyone at SPARC about her (id. at 82). He claimed to not even know why she was being treated at SPARC (id. at 86).
White described the events of March 22 as follows: he came out of his office after meeting with another patient and went to the waiting room to call plaintiff for her appointment, for which he was fifteen minutes late (id. at 86-87). McGrath told White that she was upset that he was late, and said that she needed to return to work (id. at 87). Since White understood that she was going to reschedule and leave, rather than keep her appointment, he went back to his office (id. at 89, 92). White said he and McGrath stood approximately two feet away from each other while speaking, and he acted professionally the entire time (id. at 88, 90).
After plaintiff left, White was done with his work that day at SPARC, and gathered his things so that he could return to the hospital where he would see more patients (id. 92-93). He testified that as he was walking toward the building exit, he met up with plaintiff again and asked if she wanted to go forward with the appointment (id. at 95). McGrath told White that she wanted her appointment, although she appeared agitated (id. at 96-97). As they walked back to the waiting room, she ran ahead of White and when he caught up to her, she was already in the waiting room making accusations against him for calling her names, which prompted him to leave for the hospital as he originally had planned (id. at 96-97).
White denied calling plaintiff a "Junkie" or making any derogatory statements towards her (id. at 105-106). He also testified that, when he was hired by St. Peter's, he never advised anyone that he was the subject of a patient complaint from his prior employment with Cayuga Medical concerning his having an inappropriate relationship with a patient (id. at 112-113).
Akuba Arthurton
Arthurton testified that she is employed by SPARC in a senior registration position (Arthurton Tr 8). As part of her duties, she greets patients upon their arrival for a counseling session and assists them in getting prepared to meet with a provider (id. at 13-14). When a patient arrives at the reception area, he or she stands in the waiting room, which has a barrier with a sliding glass window and counter behind the glass (id. at 15). When Arthurton worked with White, she would organize the patient files for the day and place them on a table in the back of the office area, and would hand the files to White just prior to each patient meeting (id. at 24-27). In addition to the paper files, patient information is also contained on SPARC's computer filing system (Arthurton Tr 28).
Arthurton recalled McGrath being a patient, and was aware of the incident between her and White (id. at 30). She described what took place as follows: The morning of March 22, 2018, plaintiff phoned the clinic and spoke with Arthurton to determine if White was running on time (id. at 32). Arthurton advised that White appeared to be on schedule, and told plaintiff that she should come in for her appointment (id. at 32-33 ). McGrath warned her that her time was limited (id.). When plaintiff arrived, she checked in and soon determined that Dr. White was running late (id. at 33). She then announced that she could not wait and had "somewhere to be" (id.). Arthurton had staff check on White, who advised that he was with a patient and could not be disturbed (id.).
Eventually, White came to the waiting room and apologized to McGrath for his lateness (id. at 34). According to Arthurton, things initially seemed fine between White and McGrath as they went to the doctor's office, but they soon returned to the reception area with plaintiff yelling and swearing, and White trailing behind her (id. at 34-35, 39). Arthurton testified that McGrath was "in his face yelling, and he's backing up" (id. at 35). Staff came out of their offices and intervened, as both White and plaintiff stood face-to-face yelling at each other (id. at 42-43). White then went to his office and McGrath was seen by another psychiatrist, "Dr. Ann" (id.).
Melissa Weimer, MD
Dr. Melissa Weimer was the Chief of Behavioral Health at St. Peter's from 2017 through 2019 (Weimer Tr 9). In that capacity, she was responsible for hiring medical staff for the St. Peter's Defendants, which included using a locum tenens agency to assist with evaluating potential candidates (id. at 19-23). White was hired through the agency, but Weimer has no recollection of discussing his employment with it (id. at 23). She testified that had there been any active complaints against White concerning his work for a prior employer, the agency would not have recommended him to St. Peter's for employment (id. at 24-25). White was interviewed by Weimer, but she did not remember any specifics about the interview (id. at 25-28).
White was ultimately hired by St. Peter's as a staff psychiatrist, and saw both in-patients and out-patients through the SPARC program (id. at 48). According to Weimer, had she been made aware of any prior allegations against White for an inappropriate relationship with a patient, she would not have hired him (id. at 31, 42).
Carly Stargensky
Stargensky worked as a Behavioral Health Counselor for SPARC for approximately two years from March 2018 through 2019 (Stargensky Tr 7, 12-13). Her duties included creating treatment plans for patients, and providing group facilitation and individual counseling (id. at 13). As part of the counseling, Stargensky met with patients to discuss their progress with treatment goals (id. at 15). The amount of time a patient would need to complete her treatment goals was individualized and varied from patient to patient, unless the patient was subject to court-mandated drug treatment (id. at 18). Stargensky was unaware of any SPARC patients being discharged who had not completed their treatment goals (id. at 18-19).
According to Stargensky, plaintiff came to SPARC as a "walk-in" for the out-patient detoxification program, which involved weaning her off of Suboxone - a prescription drug used to treat opioid addiction (id. at 19, 21). Stargensky was McGrath's rehabilitation counselor at the time of her discharge (id.). Initially, they met bi-weekly, but as plaintiff progressed through treatment, their counseling sessions were reduced to monthly meetings (id. at 20-21). McGrath's treatment goals included sobriety, employment stability, and medication management to ensure that she was taking her medication as prescribed (id.). Stargensky said that plaintiff successfully completed her SPARC program and received a certificate for her efforts, which may have been awarded in the winter of 2018-2019 (id. at 26-27, 41-42). When McGrath was discharged from SPARC, she was already "linked" with an outside provider for continued medication management and counseling (id. at 27).
Ana N. Cervantes, MD
The St. Peter's Defendants also offered expert opinion testimony by Dr. Ana Cervantes, a board certified psychiatrist licensed in New York, and the Chief Psychiatrist at Niagara County Correctional Facility (Cervantes Aff ¶ 1). Dr. Cervantes has a private practice performing forensic evaluations, and is a clinical assistant professor in psychiatry at SUNY Buffalo (id.).
Cervantes states that she is familiar with the standard of care for upstate New York psychiatrists at both inpatient and outpatient rehabilitation facilities,, and bases her opinion on her expertise and review of various records (Cervantes Aff ¶ 2). She opines that there was no deviation from the psychiatric standard of care by the St. Peter's Defendants in regard to the incident of March 22, 2018 or plaintiff's subsequent discharge from the SPARC program (id. ¶ 3). As for White, Cervantes asserts that he was never plaintiff's physician, as they never discussed her mental health or a possible treatment plan, and there was never a mutual decision between White and McGrath to move forward with any treatment for her (id. ¶ 11).
Cervantes attests that her review of McGrath's SPARC records after the incident shows that plaintiff immediately received counseling and support from staff at SPARC (id. ¶ 12). She notes that White was transferred to a different facility after the incident and plaintiff returned to SPARC a few days after the altercation and resumed her treatment with the same frequency as before (id.). As early as the summer of 2018, McGrath advised SPARC that she wanted to continue treatment with a different provider, and was working towards a discharge from SPARC's treatment program (id. ¶ 14). Although plaintiff sought to speed up her taper from suboxone, her SPARC treating physician -someone other than White - maintained McGrath on a slow taper for safety and stability in accordance with her treatment plan (id.). Cervantes' states that, according to plaintiff's records, she ultimately began treating at Albany Behavioral Health ("ABH"), where nurse practitioner Tracy Posdzich took over plaintiff's mental health and medication management on November 8, 2018 (id. ¶ 15). Plaintiff remained a patient at SPARC for Suboxone management until her discharge in December 2018, due to her successful completion of her SPARC treatment goals (id. ¶ 16). According to Cervantes, SPARC had no medical justification at that time to keep McGrath in its program, especially since she had already transitioned to ABH with Posdzich as her provider (Cervantes Aff ¶¶ 15-16). Cervantes expresses the view that McGrath's medical records do not substantiate the allegations in plaintiff's amended complaint that she was in "crisis" at the time of her discharge (id. ¶ 17). She notes that McGrath had treated with Posdzich at ABH for approximately two months prior to her SPARC discharge and could have presented any mental health concerns about a potential relapse into drug use to Posdzich (id. ¶ 18).
As for the harms plaintiff claims to have suffered from the March 22 incident, Cervantes asserts that a review of her medical history shows that before her altercation with White, she had been diagnosed with anxiety, depression, PTSD and substance abuse disorder, and had social anxiety and fears of crowds (id. ¶¶ 19-20). Although plaintiff contends that she was also diagnosed with "mixed bipolar affective disorder" and "borderline agoraphobia disorder," Cervantes says that these are not valid psychiatric medical diagnoses and were not made by a qualified psychiatric physician or practitioner (id. ¶ 19).
In sum, Cervantes opines that the treatment given plaintiff did not deviate from the standard of care, and all damages alleged by her in the pleadings pre-existed the March 22, 2018 incident (id. ¶¶ 21-22).
Plaintiff's Medical Records
SPARC Records
The SPARC records show that on March 22, 2018, McGrath called the clinic's main number at approximately 4:08 p.m. and left a message stating that she was in her car having a panic attack (Carbonaro Aff, Ex N part 2). Dr. Anne Nafzinger returned the call at approximately 4:12 p.m. and left a voice-mail message, asking McGrath to return to the clinic because Nafzinger was unable to leave the facility to meet her (Carbonaro Aff, Ex N part 2).
The records reflect that McGrath continued to express concerns at SPARC about what occurred on March 22, and show that SPARC made efforts to address these concerns. During an individual session with one Ann O'Donnell on April 3, 2018, McGrath complained about "a provider within SPARC and reported she felt 'anxious and unsafe' and as a result brought her mother" (id.). McGrath was given the option to transfer to another SPARC clinic to assist her in feeling safe and comfortable in treatment, but she declined. Instead, she stated that she hoped to feel better about the situation if given "time" (id.). In a follow-up visit on April 11, 2018, O'Donnell again met with McGrath regarding her concerns. McGrath advised that she had already met her newly assigned provider on April 9, 2018, and advised that she felt comfortable seeing him (id.).
In another session with O'Donnell on May 31, 2018, McGrath said among other things that "she is unable to be completely honest with the SPARC psychiatrist as she is fearful of being judged by him," noting that during a "past experience with a provider, she was called a 'junkie" and made to feel 'less than'" and she fears that all doctors perceives her to be 'just a junkie'." (Carbonaro Aff, Ex N part 2). She spoke in a similar vein in subsequent sessions (see id. [at June 6 session, she said incident with White made her "unable to trust medical professions," and at June 26 session, she attributed continuing depression to March 22 incident]).
St. Peter's Central Avenue Outpatient Clinic Records
The Central Avenue clinic records include a note from March 20, 2018, two days before the incident at issue, regarding plaintiff's appointment with Dr. Anne Nafzinger. The physician noted that McGrath reported "anxiety and worsening depression," and that she was unhappy with the medications prescribed (Carbonaro Aff, Ex N part 3). As with the SPARC records, the clinic's records show that McGrath blamed subsequent anxiety and difficulty with her providers on her interaction with White (see e.g. id. [McGrath statement on June 4, 2018 that she "[f]eels traumatized by interaction with previous psychiatrist who verbally attacked and criticized her"]).
Plaintiff's Opposing Papers
In opposition to defendants' motions, plaintiff has submitted two memoranda of law in which she argues that the St. Peter's Defendants and White failed to demonstrate their entitlement to summary judgment (Plaintiff's Memorandum of Law in Opposition to the Defendant St. Peter's Motion for Summary Judgment, dated March 16, 2023 ["PMOL1"]; Plaintiff's Memorandum of Law in Opposition to the Defendant White's Motion for Summary Judgment, dated March 17, 2023 ["PMOL2"]). She also provides two attorney affirmations, along with sixteen exhibits (Affirmation in Opposition of Defendants' Motion for Summary Judgment of Jeffrey Shapiro, Esq., dated March 16, 2023 [Shapiro Aff#1], Exs 1-16; Affirmation in Opposition to Defendant [White'] Motion for Summary Judgment of Jeffrey Shapiro, Esq., dated March 16, 2023 [Shapiro Aff#2], Exs 1-16).
As with defendants, plaintiff has offered the deposition transcripts of McGrath, Stargensky, Arthurton, White and Weimer (Exs 1-2, 7-10). Plaintiff also included an e-mail exchange between herself and Stargensky following her discharge from SPARC (Ex 15), and various records relating to the Justice Center investigation.
In these submissions, plaintiff contends that defendants failed to establish a prima facie case that no physician-patient relationship existed between White and McGrath, as such a relationship was created by contract, and by implication. Plaintiff notes that White was employed by the St. Peter's Defendants and scheduled an appointment to meet with McGrath, and she was already receiving treatment at the facility (PMOL1 at 3-4). Plaintiff also argues that the physician/patient relationship can be implied, because McGrath and White met and communicated with one another, and White's communication with McGrath had a direct consequence on her mental health, and substantially interfered with her mental health treatment (id. at 5-6). Additionally, plaintiff argues that the issue of whether a physician-patient relationship existed is a legal question for the Court, and Cervantes' opinion on this issue is therefore irrelevant (id. at 9).
Plaintiff asserts that the St. Peter's Defendants are not entitled to summary judgment on her cause of action for negligent hiring because they failed to establish that they did not have notice or a duty to investigate whether White had a propensity to commit injury (id. at 10). According to plaintiff, White revealed in his application for employment with the St. Peter's Defendants that he had been terminated from a prior position, and this gave St. Peter's constructive knowledge of White's propensity (PMOL1 at 11).
Plaintiff further maintains that the St. Peter's Defendants have not established a prima facie case that McGrath's discharge from SPARC did not deviate from the applicable medical standard of care (id. at 12). Specifically, McGrath asserts that she "made statements to SPARC staff regarding her future relapse and exhibited signs of self-harm consistent with suicidal contemplation or attempts," thus creating a question of fact as to whether she should have been discharged (id. at 13). To support this argument, plaintiff relies on e-mails that McGrath says she sent to Stargensky after she was discharged from the SPARC program (id. at 14; Shapiro Aff#1, Ex 15; see also Stargensky Tr at 38-47). These e-mails read as follows (with punctuation and spelling as in original):
"On Jan 2, 2019, at 10:43 AM, Carly Stargensky... wrote:
Here is a copy of your Certificate of Completion, I'm mailing you a nice copy as well!
Carly Stargensky
DAWN MCGRATH...
Sent: Wednesday, January 02, 2019 12:40 p.m.
To: Carly Stargensky...
Subject: [External] Re: Sparc
But I didn't complete it. I was asked to find another doctor because my tapper was taking too long. Those were your words. That you got an e-mail from Dr. ann and another official saying that my taper was taking too long and that I needed to find another doctor to continue my Suboxone taper. So why are they saying I completed it, I haven't. I didn't want to leave. I know it wasn't your decision you told me it wasn't and that you were sorry so I'm sorry that I'm taking this out on you I don't meant to.
On Jan 4, 2019, at 3:22 PM, Carly Stargensky... wrote:
Hey Dawn, I know I was just on the phone with you and you were busy so I decided to email you. I forgot to ask you when your first appointment was with Tracey for Suboxone management. Let me know when you get a second, thanks!! Have a good weekend!:)
Carly
DAWN MCGRATH...
Date: January 4, 2019 at 3:51:23 PM EST
To: Carly Stargensky...
Subject: Re: [External] Re: Sparc
It was today. And she is outraged at what sparc just did. Causing me even more anxiety and just kicking me out. She even had notes that doctor Anne and I agreed to have dr ann finish my tapper and she promised me to stick with me right to the end, knowing how bad my anxiety was. I don't know what I did wrong and im so sad. I told you I was scared and struggling really bad, and for them to know that and still kick me out is just so wrong on so many levels. I trusted the people there... and I guess I shouldn't have. I know its not you doing this.
Thank you for checking on me Carly. You're a good person and a really good counselor. You actually seem to care" ("Shapiro Aff#1, Ex 15).
Plaintiff opposes White's motion for judgment on the issue of intentional infliction of emotional distress on the ground that White had knowledge that plaintiff was susceptible to emotional distress, thus making White's conduct during the incident actionable (PMOL2 at 2). As to her cause of action for assault (PMOL2 at 5), plaintiff argues that White's words alone, given the circumstances, reasonably placed her in apprehension of harm (id.). She maintains that "White raised his voice numerous times during the encounter and while in close proximity of Plaintiff... [causing plaintiff to be] visibly upset and shaking.. [and] [d]uring the encounter Defendant White made statements such as "[a]re you fucking kidding me?"; "you're really going to fucking do this to me?"; "You really can't wait twenty minutes", and therefore she was in reasonable apprehension of being harmed (id. at 7-8).
Defendants' Reply
In a reply memorandum of law, White notes that plaintiff has not submitted any expert evidence that McGrath suffered from any particular condition that would have made her susceptible to being distressed by a verbal dispute, especially one regarding the timing of her medical appointment (Reply Memorandum of Law in Support of Clarence White's Motion for Summary Judgment, dated March 23, 2003 ["Reply MOL"] at 2). Nor, according to White, is there any evidence that he had actual knowledge of plaintiff's mental health or drug abuse history (id. at 4). Thus, White contends that the argument that took place, as a matter of law, does not meet the standard for intentional infliction of emotion distress (id.). He further argues that the yelling and finger pointing that occurred does not support a cause of action for assault, and did not give rise to a reasonable apprehension of imminent harmful conduct (id. at 7).
In their reply affirmation, the St. Peter's Defendants argue inter alia that plaintiff has failed to set forth any facts demonstrating that White and McGrath ever developed a physician-patient relationship (Reply Affirmation in Support of Motion for Summary Judgment of Brianne M. Carbonaro, Esq., dated March 22, 2023 ["Reply Aff"] at 5-10). They further contend that plaintiff has not offered evidence to support its claim for negligent hiring White, nor provided expert or other medical evidence to establish that she was improperly discharged from the SPARC program (id. at 9-10).
Discussion
To obtain summary judgment, a movant must establish its position "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (Friends of Animals, Inc. v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067 [1979], quoting CPLR 3212[b]). Specifically, the proponent of the motion must make a prima facie showing by tendering sufficient evidence to eliminate any genuine material issues of fact from the case and show its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). If a prima facie showing is made, the burden shifts to the party opposing the motion to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
In the context of a medical malpractice action, defendants generally bear the initial burden of establishing that the medical treatment rendered was within acceptable standards of care or that their actions did not injure plaintiff (see Cole v Champlain Valley Physicians' Hosp. Medical Center, 116 A.D.3d 1283, 1284 [3d Dept 2014] [citations omitted]). If defendants meet their burden, plaintiff must rebut that showing on both elements to defeat summary judgment (see Fridovich v David, 188 A.D.2d 984, 985 [3d Dept 1992], lv dismissed 86 N.Y.2d 759 [1995] [burden on plaintiff is "to establish not only a deviation or departure from accepted practice but also the requisite nexus between the malpractice allegedly committed by defendant" and the injury] [citation and internal quotations omitted]).
The threshold question in a medical malpractice action, however, is whether defendant owes plaintiff a duty of care (see McNulty v City of New York, 100 N.Y.2d 227, 232 [2003]). Under New York law, "[l]iability for medical malpractice may not be imposed in the absence of a physician-patient relationship" (Blau v Benodin, 190 A.D.3d 922, 922 [2d Dept 2021]; see also Pizzo-Juliano v Southside Hosp. 129 A.D.3d 695, 697 [2d Dept 2015] ["for there to be a cause of action sounding in medical malpractice a physician-patient relationship must exist that gives rise to a duty of care"]). The existence of such a relationship and whether a duty of care was owed by the defendant physician "is a legal question for courts to determine" (Marshall v Rosenberg, 196 A.D.3d 817, 819 [3d Dept 2021]).
Medical Malpractice Concerning White's actions on March 22, 2018
A physician-patient relationship "is created when professional services are rendered and accepted for purposes of medical or surgical treatment" (Blau, 190 A.D.3d at 922; see also Dupree v Giugliano, 20 N.Y.3d 921, 924 [2012] [for there to be medical malpractice, the challenged conduct must "constitute medical treatment or bear a substantial relationship to the physician's treatment of the patient"]; Marshall, 196 A.D.3d at 819 [same]). In certain circumstances, a physician-patient relationship may be "implied" (see Pl Mem at 3; Lee v City of New York, 162 A.D.2d 34, 36 [2d Dept 1990], lv denied 78 N.Y.2d 863 [1991]). But an implied relationship is still subject to the requirement that services be "rendered and accepted," (see Heller v Peekskill Community Hosp., 198 A.D.2d 265, 265 [2d Dept 1993]), such as "when a physician gives advice to a patient" (Blau, 190 A.D.3d at 922; see also Marshall, supra [question of fact created as to implied doctor-patient relationship when medical provider wrongly advised patient she could delay seeing specialist, and the delay contributed to plaintiff's subsequent blindness]; Cogswell v Chapman, 249 A.D.2d 865, 866 [3d Dept 1998] [implied physician-patient relationship exists where physician "affirmatively advises a prospective patient as to a course of treatment and it is foreseeable that the patient would rely on the advice"]; Raptis-Smith v St. Joseph's Med. Ctr., 302 A.D.2d 246, 247 [1st Dept 2003] [opinion rendered by radiologist on plaintiff's x-ray raised question of fact as to whether "implied" physician-patient relationship existed]). Indeed Lee, relied upon by plaintiff, made clear that no "implied" relationship is established until the doctor's services are "rendered" and "accepted" (162 A.D.2d at 36).
In the present action, there is no evidence in the record that White ever rendered professional services to plaintiff for purposes of treatment. Plaintiff asserts that there was nevertheless a physician-patient relationship between White and McGrath. Her strongest argument in this regard is premised on the following: "(1) Defendant White was an employee of the facility that Plaintiff was already receiving treatment from, and (2) Defendant White agreed, as a matter of fact, to render treatment to Plaintiff with the scheduling of an appointment" (PMOL1 at 3-4). In other words, she argues there was a treatment relationship between the provider for which White worked and on the day in question, and White was scheduled to provide services to McGrath which she had already been receiving through that relationship. The issue thus raised may be phrased in this way: When a plaintiff is already receiving services from a health care provider, and a doctor at that provider takes over the provision of services by making an appointment with plaintiff, does he still have to personally render services before such a relationship will be established?
Plaintiff argues that either of these grounds is sufficient to give rise to a contractual relationship, but as is made clear from the law cited below, the only close question is created when both factors are considered.
Neither party cites any authority directly on this question. There is, however, a line of cases which I think sheds some light on it, involving on-call doctors at facilities where plaintiffs seek treatment, and who fail to provide such treatment. In these circumstances, a doctor may be found liable for malpractice notwithstanding that they have never rendered care to plaintiff. For example, in Dillon v Silver (134 A.D.2d 159 [1st Dept 1987]), the First Department denied summary judgment to a hospital's on-call doctor who had never seen the decedent plaintiff and left a message explicitly declining to treat her, since as the attending physician it was his responsibility to provide care to plaintiff, his name had been provided to her by another doctor at the hospital for follow-up care, and the hospital's by-laws mandated that he treat all patients referred to him while on call (id. at 161-162). Given these facts, at the time the patient was told to contact the attending doctor, "it can be argued that she was already his patient" (id. a 162; see also Clarke v Union Hosp. of the Bronx, 6 A.D.3d 229, 230 [1st Dept 2004] [questions of fact as to whether on call doctor who failed to respond to his beeper - and thus never rendered medical care to plaintiff - had a duty to respond as the on-call anesthesiologist]).
These cases appear to represent the outer limit of how an implied doctor-patient relationship may arise, even when no treatment or advice was actually provided. Laying the facts of the case before me alongside these, it is clear for a number of reasons that such circumstances giving rise to a duty of care - even without the rendering or acceptance of professional services - do not apply here.
Plaintiff's own testimony and statement concerning her interaction with White indicate that during their verbal altercation, nothing was discussed regarding medication, treatment or even her medical and psychiatric history (Pl Tr1 at 67-70; Pl Tr2 at 17-27, 56-62; see also Statement 5-14). Rather, before McGrath was aware that White was the doctor she was scheduled to meet, the two argued over his lateness and her desire to cancel the appointment, which was the only topic broached during the conversation. Indeed, the gravest aspect of her allegations - that White called an individual being treated for drug addiction a "junkie" - took place after she believed White had left for the day, and she had returned for the purpose of complaining to others about his conduct, not to proceed with treatment (see Statement at 12-13). Further, unlike Dillon and its progeny, there is no evidence of any agreement, policy or practice within SPARC that would have placed any obligation on locum tenens doctor White to treat Ms. McGrath under these circumstances.
What I am left with, then, is the argument that White had a doctor-patient relationship with McGrath because they had an appointment, and she had previously treated with other doctors at the facility. These are clearly insufficient to create such a relationship (see Garofalo v State, 17 A.D.3d 1109, 1110 [4th Dept 2005] [making of medical appointment with doctor did not create physician-patient relationship]; McAlwee v Westchester Health Associates, PLLC, 163 A.D.3d 549, 550-551 [2d Dept 2018] [doctor who shared office at practice with treating doctor did not have a duty to the treating doctor's patient]). Nor am I convinced by the argument that a doctor-patient relationship arose because White interfered with plaintiff's care (see PMOL1 at 5-6). If that were so, then the need to show a duty of care would disappear, since the act of harm would be sufficient to automatically impose such a duty.
Accordingly, I find, as a matter of law, that there was never a physician-patient relationship between White and McGrath. While I recognize that in the context of a provider of mental health services, the line between a conversation and treatment is less clear than it might be in other circumstances, nothing in any witnesses' testimony, including that of Ms. McGrath, indicates that her interaction with White involved anything but an argument about his lateness and her reaction to it. There is simply no evidence that he ever rendered treatment or medical advice to her. As a result, the motion by the St. Peters defendants to dismiss plaintiff's claims for medical malpractice against them is granted (see Payne v Rome Memorial Hospital, 177 A.D.3d 1269, 1269-1270 [4th Dept 2019] ["liability for medical malpractice may not be imposed absent a physician-patient relationship, either express or implied, because there is no legal duty in the absence of such a relationship"]).
Although White has not sought summary judgment on the medical malpractice claim, the finding above that there existed no doctor-patient relationship between him and McGrath is law of the case, and dispositive of her malpractice claim against him. I therefore must grant summary judgment for him on this cause of action as well (see CPLR 3212 [b] ["If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion"]).
Intentional Infliction of Emotional Distress
To establish a cause of action for intentional infliction of emotional distress ("IIED"), plaintiff must prove "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Chanko v American Broadcasting Cos. Inc., 27 N.Y.3d 46, 52 [2016]). In particular, plaintiff must show conduct by defendant that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency... and [be] utterly intolerable in a civilized community" (Marmelstein v Kehillat New Hempstead, 11 N.Y.3d 15, 22-23 [2008] [internal quotation marks omitted]). The issue of whether or not the requisite outrageousness of the conduct has been shown is an issue of law for the court to determine (see Drimer v Zionist Organization of America, 194 A.D.3d 641, 642 [1st Dept 2021]). Moreover, the standard for outrageous conduct that a plaintiff must meet is "strict, rigorous and difficult to satisfy" (Scollar v City of New York, 160 A.D.3d 140, 146 [1st Dept 2018], citing Howell v New York Post Co., Inc., 81 N.Y.2d 115, 122 [1993]).
Here, the conduct described by plaintiff is that White invaded her personal space, yelled expletives in her ear and told her that she was a "junkie" whose time did not matter. Although such conduct is clearly disrespectful, rude and inappropriate, it does not constitute the type of "outrageous" conduct that is needed to support an IIED cause of action. The caselaw makes clear that "[m]ere insults, threats, annoyances or indignities are insufficient" to constitute such a tort (see Davydov v Youssefi, 205 A.D.3d 881, 883 [2d Dept 2022] [shouting verbal threats and hostile and demeaning insults at the plaintiff was not so outrageous as to constitute intensional infliction of emotional distress ]; see also Chanko, 27 N.Y.3d at 56-57 [defendant's filming and broadcasting of patient's medical treatment and death, without consent, which was seen by his family, did not support family's IIED claim]; Russell v New York Univ., 204 A.D.3d 577, 581 [1st Dept 2022] [harassing mail, e-mail and online comments targeting plaintiff's age, religion, gender identity and expression as a woman, and her sexual orientation as a lesbian, although "abhorrent", "offensive", and "insulting," did not support IIED cause of action]; Gadson v City of New York, 156 A.D.3d 685, 687 [1st Dept 2017] [isolated incident of middle school janitor calling child names not extreme or outrageous conduct]).
Plaintiff distinguishes the actions by defendant in this case on the ground that she was susceptible to emotional distress, and White was aware of her condition and that she was fragile and being treated for mental health and substance abuse issues (PMOL2 at 3). For this proposition, plaintiff relies primarily on Rich v For News Network, LLC (939 F.3d 112 [2d Cir 2019]) (see PMOL2 at 4). In that case, the Court held that "knowledge of a plaintiff's susceptibility to emotional distress can, under New York law, transform non-actionable acts into outrageous conduct" (id.). Rich derived this rule for the Restatement of Torts 2d § 46(f) (with emphasis added), which sets forth the following principles:
"The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough "
The cases which have employed the "susceptibility" rule have only found defendant's conduct to be actionable when it meets a much higher standard than reflected by the facts of this case. Thus, in Rich itself, the Second Circuit found that plaintiffs had stated a claim for IIED on the basis of defendant's media campaign to falsely report on the death of plaintiffs' son, which amounted to (in the Court's description) a "deliberate and malicious campaign of harassment," and "emotional torture" (Rich, 939 F.3d at 123). Cases that have followed Rich have similarly upheld this cause of action only when faced with conduct that is comparably deliberate and extreme (compare Moraes v White, 571 F.Supp.3d 77, 105 [SD NY 2021] ["multi-pronged campaign" of harassment against plaintiff designed to drive her away constituted IIED, in light of plaintiff's history of PTSD following violent attack, on which defendants "sought to capitalize"] with Moleon v Alston, 2021 WL 5772439, at *12 [SD NY Dec 3, 2021] [distinguishing Rich; conduct of defendants did not constitute deliberate campaign of harassment, but at most reflected "disrespectful... treatment, a hostile environment, humiliating criticism,... insults or other indignities" which did not meet IIED standard] [citation omitted]). Thus, even if it can be said that White knew of McGrath's susceptibility, the actions attributed to him by McGrath do not state a claim under this tort.
Moreover, while White must have had a general knowledge of the issues faced by McGrath by virtue of the fact that she was visiting SPARC, there is no proof that he knew of her situation in any detail. To the contrary, White testified that he knew nothing about McGrath or why she was seeking treatment, and that he was meeting her for the first time (White Tr 82). This testimony is supported by Arthurton, who explained that she would provide White with a patient's file just minutes before he would meet the person (Arthurton Tr 24-27). White said that his practice was to review a patient's file while he was in the treatment session with that individual (White Tr 65-67), but he never made it into session with McGrath. Plaintiff has not offered any evidence to call into question White's testimony that he had no specific knowledge of McGrath's mental health history. Plaintiff has also failed to provide any expert testimony demonstrating that she has a peculiar susceptibility to emotional distress.
Finally, the mere fact that McGrath was at the facility to treat with White, and that he was scheduled to meet with her in his capacity as a doctor, does not raise these isolated encounters to the level of an IIED claim (see Albert v Solimon, 252 A.D.2d 139, 140-141 [4th Dept 1998] [physician's actions in screaming at top of his voice at patient for bringing her service dog into examination room, which caused plaintiff to flee from the room, did not support claim for negligent or intentional infliction of emotional distress]).
Accordingly, plaintiff's claim for intentional infliction of emotional distress must be dismissed.
Assault
Plaintiff's claim for assault also cannot survive defendant White's motion. To establish this cause of action, "there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Cayruth v City of Mount Vernon, 188 A.D.3d 1139, 1141 [2d Dept 2020]; see also Blake v State, 145 A.D.3d 1336, 1337 [3d Dept 2016], lv denied 29 N.Y.3d 908 [2017] [same]). Moreover, "[w]hile an action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff, words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to [set forth] a cause of action alleging assault" (Gould v Rempel, 99 A.D.3d 759, 760 [2d Dept 2012] [internal quotation and citation omitted] [supervisor entering plaintiff's hotel room to scream at her to stay away from another coworker, and in a second incident screaming at plaintiff so loudly that his face turned red and plaintiff feared for her safety, did not constitute conduct that would have caused plaintiff reasonable apprehension of imminent harmful or offensive contact]).
In other words, conduct "which amounts to finger pointing and generalized yelling in the context of a heated [dispute], is inappropriate behavior, not to be condoned, but, without more, it is not the type of menacing conduct that may give rise to a reasonable apprehension of imminent harmful conduct needed to [establish] an actionable claim of assault" (Okoli v Paul Hastings LLP, 117 A.D.3d 539, 540 [1st Dept 2014]; see also Holtz v Wildenstein & Co, 261 A.D.2d 336, 336 [1st Dept 1999] ["impulsive reaching motion in plaintiff's direction by her supervisor promptly avoided by plaintiff" did not engender imminent apprehension of harmful contact"]).
Plaintiff described the March 22, 2018 incident as one where White invaded her personal space, screamed expletives, and told her that she was an insignificant "junkie." Such actions would be hurtful and deeply inappropriate, but they do not constitute the sort of "menacing conduct" which the caselaw has found sufficient to cause a person to have a reasonable apprehension of imminent harmful contact, as needed to sustain a claim for assault (see Gould, supra; Okoli, supra; Holtz, supra).
For those reasons, plaintiff's cause of action for assault must be dismissed.
Negligent Hiring and Respondeat Superior
In light of my findings that defendants have established that White did not engage in any actionable conduct against McGrath - and as plaintiff has not offered any factual evidence to rebut White's prima facie case - the claims against the St. Peter's Defendants for negligent hiring, training, supervision and respondeat superior fail as a matter of law.
A claim for respondeat superior must be premised on a tort committed by an employee in furtherance of the employer's business (see Sandra M. v. St. Luke's Roosevelt Hosp. Center, 33 A.D.3d 875, 877 [2d Dept 2006]). Here, since there was no such tort on the part of White, the St. Peter's Defendants cannot be held vicariously liable on a theory of respondeat superior (id.; see also Flanagan v Catskill Regional Medical Ctr., 65 A.D.3d 563, 566 [2d Dept 2009]).
A cause of action for negligent hiring also requires that a tort be committed by the employee at issue against a third person, before an employer can be held liable (see Sandra M., 33 A.D.3d at 878). Here, since the facts before me do not support any of the amended complaint's causes of action for tortious conduct by White, the claim for negligent hiring, training and supervision against the St. Peter's Defendants must also fail (see Miller v Miller, 189 A.D.3d 2089, 2090 [4th Dept 2020] [claim against employer for negligent supervision and retention must be premised on employee committing tort against a third person]; Medical Care of Western New York v Allstate Ins. Co., 175 A.D.3d 878, 880 [4th Dept 2019] [same]).
Medical Malpractice Concerning Discharge from SPARC
The above rulings leave one final cause of action to be addressed: Plaintiff's claim for medical malpractice against the St. Peters defendant for her alleged premature discharge from SPARC. Such a claim turns on the allegation that these defendants "deviated from any acceptable standard of care when they ignored her repeated concerns of crisis and discharged her from their program which was the proximate cause of the Plaintiff injuries" (Amended Complaint ¶ 111).
Deviation from the standard of care and proximate cause may be proven, however, only by the testimony of a competent expert, unless the issue is "one which is within the experience of and observation" of a lay fact-finder (see Lyons v McCauley, 252 A.D.2d 516, 517 [2d Dept 1998], lv denied 92 N.Y.2d 814 [1998]). Moreover, "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a]... summary judgment motion" (Alvarez v Prospect Hosp., 68 N.Y.2d at 325; see also Snyder v Simon, 49 A.D.3d 954, 956 [3d Dept 2008] [plaintiff failed to rebut defendant's prima facie case when its expert affidavits did "not identify or define the applicable standard of care, and fail[ed] to adequately set forth both the manner in which [defendant] deviated from the standard of care in treating plaintiff and the requisite nexus between that alleged malpractice and the injuries to plaintiff"]).
Through Dr. Cervantes's expert affidavit and McGrath's testimony and medical records, defendants have met their burden of demonstrating that their actions of discharging plaintiff following her completion of the SPARC detoxification program was within the acceptable standards of care (see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 A.D.3d 1283, 1284 [3d Dept 2014] [defendant may meet burden on summary judgment in malpractice action "by submitting a defendant physician's affidavit or affirmation describing the facts in specific detail and opining that the care provided did not deviate from the applicable standard of care"]).
As noted by Cervantes, in the summer of 2018, McGrath had advised SPARC she was in the process of finding a new provider and was planning to be discharged from SPARC's program (Cervantes Aff ¶ 14). Indeed, the medical records reveal that on May 8, 2018, plaintiff advised SPARC that she would "ideally like to secure outside mental health treatment" (Carbonaro Aff, Ex N part 2). In July 2018, McGrath was transitioned from SPARC's Dr. LeVigne, to Dr Lawrence, and she was given the option of seeing someone outside of SPARC if she did not feel comfortable with Dr. Lawrence - an option that she elected to pursue on August 8, 2018 as a result of Dr. Lawrence being late to their August 6 session (id.).
On August 14, 2018, plaintiff advised Dr. Nafzinger that she had started looking for a psychiatrist outside of SPARC and had contacted CDPHP Behavioral Health Management to get a list of its providers (Carbonaro Aff, Ex N part 3). According to plaintiff's own testimony, in November 2018 she started treating with her new therapist "Tracy" (Pl Tr1 87). Cervantes' review of the medical records confirmed plaintiffs testimony that, in November 2018, she began treating at ABH with Nurse Practitioner Tracy Posdich for both mental health and medication management (Cervantes Aff ¶ 15). McGrath remained at SPARC for detoxification treatment until her discharge at the end of December 2018 (Pl Tr1 at 87; Stargensky Tr 26-27, 41-42). Cervantes opined that at the time McGrath's discharge, her records did not reveal evidence that she was in "crisis" (Cervantes Aff ¶ 17). She further found that even if McGrath was experiencing mental health difficulties, such issues would have been properly directed to her mental health therapist at that time, Nurse Practitioner Posdich of ABH (id. ¶¶ 15-18).
This affidavit is sufficient to establish prima facie that the St. Peters Defendants met the standard of care, and did not cause injury to plaintiff through her discharge. For her part, plaintiff has not provided any expert evidence or pointed to anything in her medical records that would contradict Dr. Cervantes' conclusions concerning the propriety of her discharge from SPARC in December 2018. Instead, plaintiff offers a series of e-mails that she sent to Stargensky days after being discharged (PMOL1 at 14, Shapiro Aff#1, Ex 15). These communications, as set forth above, do not reveal that plaintiff was in crisis. Rather, they appear to reflect McGrath expressing displeasure in the manner in which she was discharged from her detoxification treatment, although in this same exchange, she advised Stargensky that her Suboxone treatment was continuing at ABH, with the same person who had been treating plaintiff's mental health concerns since November 2018 (Shapiro Aff#1, Ex 15).
None of these emails, nor anything else in plaintiff's response to the motion indicate that there was a deviation from the standard of care by defendants during plaintiff's discharge from SPARC, much less do they present expert testimony rebutting Cervantes' opinion. As a result, I must grant the St. Peters Defendants summary judgment on this cause of action as well. Additionally, I note that the record before me is devoid of expert or medical evidence demonstrating that plaintiff suffered injury as a result of her discharge from SPARC and the transition of her mental health treatment and medication management to ABH.
In light of the foregoing, it is hereby
ORDERED that defendants' motions for summary judgment are granted, and the amended complaint is dismissed in its entirety.
This constitutes the Decision & Order of the Court. This Decision & Order is being electronically filed with the Clerk's Office, with simultaneous copies being e-mail to counsel for the parties. The electronic filing of this Decision and Order shall not constitute Notice of Entry, and counsel are not relieved from the applicable provisions of the CPLR respecting to filing and service of such Notice.
Papers Considered:
1. Notice of Motion and Attorney Affirmation in Support of Clarence White's Motion for Summary Judgment of Timothy S. Brennan, Esq., dated January 16, 2023, with Exhibits annexed thereto; Memorandum of Law in Support of Clarence White's Motion for Summary Judgment, dated January 16, 2023; and Statement of Material Facts in Support of Clarence White's Motion for Summary Judgment, dated January 16, 2023.
2. Notice of Motion and Attorney Affirmation in Support of Motion for Summary Judgment of Brianne M. Carbonaro, Esq., dated January 16, 2023, with Exhibits annexed thereto; Memorandum of Law, dated January 26, 2023, and Supplemental Attorney Affirmation in Support of Motion for Summary Judgment of Brianne M. Carbonaro, Esq., dated February 2, 2023.
3. Affirmation of Jeffrey Shapiro in Opposition of Defendant's Motion for Summary Judgment, dated March 16, 2023, with Exhibits annexed thereto, with Plaintiff's Memorandum of Law in Opposition to the Defendant White's Motion for Summary Judgment, dated March 17, 2023 and Response to Defendant White's Statement of Material Facts and Counterstatement of Facts, dated March 17, 2023.
4. Affirmation of Jeffrey Shapiro in Opposition of Defendant's Motion for Summary Judgment, dated March 16, 2023, with Exhibits annexed thereto, with Plaintiff's Memorandum of Law in Opposition to the Defendant St. Peter's Motion for Summary Judgment, dated March 16, 2023, and Response to [St. Peter's] Statement of Material Facts and Counterstatement of Facts, dated March 17, 2023.
5. Reply Affirmation in Support of Motion for Summary Judgment of Brianne M. Carbonaro, Esq., dated March 22, 2023; Supplemental Reply Attorney Affirmation in Support of Motion for Summary Judgment of Brianne M. Carbonaro, Esq., dated March 23, 2023.
6. Reply Attorney Affirmation in Support of Clarence White's Motion for Summary Judgment of Timothy S. Brennan, Esq., dated March 23, 2023, with Reply Memorandum of Law in Support of Clarence White's Motion for Summary Judgment, dated March 23, 2023.