Summary
holding that “there [was] no cause of action for lack of informed consent, because the alleged sexual liaison was not a treatment or diagnosis”; no discussion of medical malpractice cause of action, which was left intact by Supreme Court
Summary of this case from Dupree v. GiuglianoOpinion
April 26, 1990
Appeal from the Supreme Court, New York County (Michael Dontzin, J.).
Defendant Vittorio, who treated plaintiff as her attending psychiatrist while she was an inpatient at defendant St. Vincent's Hospital, engaged in sexual relations with plaintiff after she had been discharged, and after he had ceased treating plaintiff as his patient. Plaintiff allegedly became pregnant during this brief affair and underwent an abortion. She subsequently commenced this action against both Dr. Vittorio and the hospital, asserting causes of action sounding in intentional infliction of emotional distress, medical malpractice, and lack of informed consent.
We agree with the IAS court that, on the facts presented, there is no cause of action for lack of informed consent, because the alleged sexual liaison was not a treatment or diagnosis, nor could the defendant hospital be held liable to plaintiff on a theory of respondeat superior. (See, Noto v. St. Vincent's Hosp. Med. Center, 142 Misc.2d 292.) That a hospital is not responsible under the doctrine of respondeat superior for sexual relations between professional employees and patients accords with the prevailing weight of authority in other jurisdictions (see, e.g., Andrews v. United States, 732 F.2d 366, affg 548 F. Supp. 603; Cosgrove v. Lawrence, 215 N.J. Super. 561, 522 A.2d 483), as well as the law in this State, which requires that for the doctrine to apply, the acts complained of be within the scope of employment and in furtherance of the employer's business. (Cornell v. State of New York, 46 N.Y.2d 1032; Heindel v. Bowery Sav. Bank, 138 A.D.2d 787.)
Since the IAS court improperly characterized the cross motion of defendant St. Vincent's as a motion to dismiss pursuant to CPLR 3211, when in fact the motion was for summary judgment pursuant to CPLR 3212, it did not address the issue raised by plaintiff as to whether liability against the defendant hospital could be based upon negligence in training or supervising defendant Vittorio. Upon our consideration of that issue, we find that plaintiff failed to allege facts on which the existence of a viable claim in this regard could be predicated. Accordingly, summary judgment in favor of St. Vincent's Hospital should be affirmed.
Concur — Ross, J.P., Carro, Kassal, Ellerin and Rubin, JJ.