Opinion
INDEX NO. 153937/2014
01-26-2018
PETRA VASQUEZ, Plaintiff, v. MANHATTAN PHYSICIAN GROUP, ADVANTAGECARE PHYSICIANS, and HARRY KARAMITSOS, Individually, Defendants.
NYSCEF DOC. NO. 131 Motion Seq. Nos. 003 and 004 DECISION AND ORDER CAROL R. EDMEAD, J.S.C. :
In a case involving allegations of sexual harassment during a gynecological exam, defendant Advantagecare Physicians, P.C. s/h/a Advantage Care Physicians (Advantagecare) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint (motion seq. No. 003). Defendant Harry Karamitsos moves for summary judgment dismissing all claims against him (motion seq. No. 004).
Advantagecare also nominally moves to dismiss the complaint pursuant to CPLR 3211 (a) (7), but their motion, for all pragmatic purposes, is one for summary judgment.
BACKGROUND
This case arises from a doctor-patient relationship that ended following a gynecological exam on Friday, January 17, 2014. On a prior visit to defendant Dr. Harry Karamitsos (Karamitsos), plaintiff Petra Vasquez alleges that Karamitsos told her she had a "pretty face" (plaintiff's deposition tr at 119). Vasquez alleges that on a subsequent visit, Karamitsos referred to her "pretty face" again, this time, apparently, to dissuade her from seeking a biopsy of her lip (id. at 154).
Between her third and fourth visits with Karamitsos, plaintiff got a tattoo on her neck, and at the fourth visit plaintiff alleges that Karamitsos touched the tattoo on her neck without prompting or medical purpose (id. at 155-156). Plaintiff testified that "[t]he compliments were a little creepy, but . . . I didn't appreciate him reaching out and touching me" (id. at 156).
Plaintiff's seventh visit is the one that took place on January 17, 2014. The reason for plaintiff's visit was that she had developed a painful lump in her left breast (id. at 168). Karamitsos performed a Pap smear, a breast exam, and a pelvic exam, in that order, at the visit (id. at 174; 204). Plaintiff testified that the breast exam did not proceed in the same way as prior exams, as both of her breasts were exposed and, instead of the linear motions used prior exams, Karamitsos touched plaintiff's "full breast in wider circular motions, heavy handed ... not linear" (id. at 176). Moreover, plaintiff testified that Karamitsos "pinched and twisted" both of her nipples with thumb, index and middle fingers (id.). Plaintiff performed this process twice on her right nipple and once on her left nipple (id. at 180).
While Karamitsos was performing the breast exam, plaintiff testified that he was "talking a lot" and that she "felt like something was wrong" (id. at 181). Plaintiff also felt that her breasts and stomach were inappropriately exposed during her pelvic exam, and that she should have had a paper blanket covering her and serving as a barrier between her abdomen and Karamitsos' hand (id. at 215). During the examination, plaintiff testified, Karamitsos "kept repeating the same thing over and over again. It was mainly about the sonogram, if they find anything, don't worry, come back, I'll check it, don't worry about it" (id. at 220).
After the examination, plaintiff alleges that Karamitsos left the examination room with the nurse, to give plaintiff time to dress, but he returned alone before she had finished getting dressed (id. at 220). While Karamitsos knocked upon his return, plaintiff testified that [h]e didn't wait for me to say ... I finished dressing or not" (id. at 221). Karamitsos closed the door and sat down, and, plaintiff testified that, "[a]t this point I'm still finishing getting dressed and he's repeating himself a lot, very awkward. He just kept saying ... if they find anything [through the sonogram] you come back I'll check you again, it's not a problem. He repeated that same thing about three to four times" (id. at 222).
Following the appointment, plaintiff felt that Karamitsos had "molested" her (id. at 226). On January 20, 2014, plaintiff dropped off a complaint letter to Advantagecare, and asked to speak to someone who handles complaints, but no one was available (id. at 229). Plaintiff followed up by phone, calling a person she had been given by Advantagecare, but her voicemails regarding her complaint were not returned (id. at 230-231).
Plaintiff filed her complaint on April 23, 2014, alleging four causes of action. The first cause of action alleges that Karamitsos, Advantagecare and defendant Manhattan Physician's Group (MPG) are liable for gender discrimination under section 8-107 of the New York City Administrative Code (the City's Human Right's Law). The second cause of action is against Karamitsos for allegedly violating the City's Human Right's Law by aiding, abetting, inciting, compelling and coercing" the gender discrimination violation alleged in the first cause of action. The third cause of action is for intentional infliction of emotional distress against Karamitsos, while the fourth cause of action, also brought only against Karamitsos, is for battery.
DISCUSSION
It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR §3212 [b]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co., 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Carroll v Radoniqi, 105 AD3d 493, 963 NYS2d 97 [1st Dept 2013]). The opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist," and the "issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 476 NYS2d 897 [1st Dept 1984]; see also, Armstrong v Sensormatic/ADT, 100 AD3d 492, 954 NYS2d 53 [1st Dept 2012]).
I. Karamitsos's Motion for Summary Judgment (motion seq. No. 004)
Karamitsos submits an affirmation from Rebecca Brightman (Brightman), an Obstetrician/Gynecologist. Plaintiff, in opposition, argues that Brightman's affirmation should be precluded. Initially, plaintiff argues that Brightman's affirmation should be precluded because she is not bringing a claim for medical malpractice, however she provides no caselaw to support this position. Here, where the allegations are that Karamitsos actions veered from their gynecological purpose, testimony as to whether those actions conform to medical standards is relevant.
Plaintiff also argues that Brightman's testimony should be precluded, as Karamitsos did not identify Brightman as an expert witness prior to filing his motion for summary judgment. CPLR 3101 (d) (1) (i) provides that, "upon request, each party shall identify each person whom the party expects to call as an expert witness at trial" and
"where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just."
Moreover, the Legislature revised 3212 (b) in 2015 to provide that "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision." Accordingly, and as the court is not persuaded by plaintiff's additional arguments on this issue, the court declines to preclude Brightman's affirmation.
Brightman, having reviewed the materials in this case, opines that "Karamitsos' care rendered on January 17, 2017 was at all times entirely appropriate and well-within the applicable standards of good and accepted medical care. It is also my opinion, to a degree of medical certainty, that at no time did Defendant Dr. Karamitsos deviate from the standard of care in treating Ms. Vasquez, or in managing her care and treatment" (Brightman aff, ¶ 5). Specifically, as to the method Karamitsos' examination of plaintiff's breasts, Brightman concludes that:
"Karamitsos' exposure of both of the patient's breasts at the same time during the breast examination complied with the standard of medical care and was entirely appropriate for a patient who presented with complaints of breast pain and
lump(s). Based upon my medical training and experience as an Obstetrician/Gynecologist, the standard of care applicable to a patient presenting with the same complaints of breast pain and lump(s) as Plaintiff is to examine the breast for masses and discharge by pressing and squeezing the patient's breasts around the nipple area with the fingertips, in a circular motion and moving towards the nipples. Importantly, the medical record and Plaintiff's testimony show that Dr. Karamitsos did evaluate Plaintiff for masses, discharge and tenderness during the gynecological exam, and found tenderness in the left breast, and no masses or discharge on either breast"(id., ¶ 9).
As to the pelvic exam, Brightman testified that "the decision as to whether to palpate a patient's pelvis during a pelvic exam directly over the stomach rather than over a blanket is within the discretion of the examining gynecologist" and "is not a deviation from the standard of care to press down on patient's bare stomach during a pelvic examination" (id., ¶ 10). As to Karamitsos talk of a return appointment, Brightman concludes that "it is standard practice to have a patient return for a follow-up visit after an ultrasound to obtain her results and discuss future plans of treatment" (id., ¶ 11). Finally, Brightman concludes generally that "all of the care and treatment rendered to Plaintiff was entirely and unequivocally proper and adequate, and was well within the applicable standard of care" (id., ¶ 12).
The City's Human Rights Law
Historically, the City's Human Rights Law (the City's HRL) was interpreted as coextensive with state and federal civil rights laws. However, in 2005, City Council passed the Local Civil Rights Restoration Act of 2005, which revised the City's HRL to ensure that it would "be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York civil rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed" (Administrative Code § 8-130). In Williams v New York City Housing Authority, the First Department summarized the import of these changes:
"the Restoration Act notified courts that (a) they had to be aware that some provisions of the City HRL were textually distinct from its State and federal counterparts, (b) all provisions of the City HRL required independent construction to accomplish the law's uniquely broad purposes and (c) cases that had failed to respect these differences were being legislatively overruled"(61 AD3d 62, 68).
The City's Human Rights Law section dealing with public accommodations provides that it is "an unlawful discriminatory practice for any person who is the owner ... or employee of any place or provider of public accommodation" to "deny to such person the full and equal enjoyment, on equal terms and conditions, of any of the accommodations, advantages, services, facilities or privileges of the place or provider of public accommodation" (Administrative Code § 8-107 [4] [1] [a]). Williams, which involved allegations of sexual harassment in the workplace under Administrative Code § 8-107 [1] [a], held that "for HRL liability ... the primary issue for a trier of fact in harassment cases, as in other terms-and-conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her gender" (61 AD3d at 78).
In reaching this conclusion, Justice Acosta, writing for the Court, reasoned that sexual harassment is a form of gender discrimination: "Despite the popular notion that 'sex discrimination' and 'sexual harassment' are two distinct things, it is, of course, the case that the latter is one species of sex- or gender- based discrimination. There is no 'sexual harassment provision' of the law to interpret; there is only the broad provision of the law that proscribes imposing different terms, conditions, and privileges of employment based, inter alia, on gender" (id. at 75, citing Administrative Code § 8-107 [1] [a]).
A medical office treating patients is a public accommodation under the City HRL (see e.g., Cahill v Rosa, applying the City HRL to a dentist who refused to treat a patient diagnosed with AIDS). The threshold question here is whether the rule articulated in Williams -- that a gender discrimination violation of the City HRL is present when a plaintiff has been treated less well than other employees because of her gender -- applies to public accommodations, such as a doctor's office. Here, the language of Administrative Code § 8-107 [4] [1] [a], which precludes gender discrimination in the workplace, is broadly worded, like the language of Administrative Code § 8-107 [1] [a], which precludes gender discrimination in the workplace. While this appears to be a novel question of law, there is no reason why Justice Acosta's formulation regarding disparate treatment does not apply equally to public accommodations. In other words, the City HRL prohibits sexual harassment not only in the workplace, but also by the providers of public accommodations.
Thus, the next question is whether there is a question of fact regarding Karamitsos' treatment of plaintiff, that is, was she treated less well than other patients because of her gender? Karamitsos argues that there is no question of fact because he has submitted Brightman's expert affirmation, in which Brightman opined that Karamitsos examination of plaintiff did not deviate from the standard of the care.
However, plaintiff raises an issue of fact as to whether Karamitsos, overall, treated her less well than other patients because of her gender. Although men are not typically treated by gynecologists, would a similarly situated man, at a urology appointment, be told, repeatedly, that he has a pretty face? Would the urologist touch his neck for a non-medical purpose? These are questions of fact for a jury, and not suitable to resolution at this stage.
In the absence of expert testimony submitted by the plaintiff, the factfinder will have to accept that the actions of Karamitsos which Brightman refers to specifically do indeed conform to medical standards. However, Brightman did not address and opine on all the allegedly discriminatory activity of which plaintiff complains. For example, while Brightman opined that "[i]t is the standard of care to have a patient return for a follow-up visit after having prescribed ultrasound, even if the ultrasound was positive. Importantly, and in the clinical setting, it is standard practice to have a patient return for a follow-up visit after an ultrasound to obtain her results and discuss future plans of treatment" (Brightman aff, § 12).
However, plaintiff's complaint about the post-ultrasound return visit was not that it was suggested, but that it was suggested repeatedly in an off-putting manner and coupled with a promise that Karamitsos would examine her breasts again after the ultrasound. It was this promise that struck plaintiff as being salacious, as Brightman has not opined on whether a breast examination after an ultrasound is standard, although she did opine generally that all the treatment was appropriate and within the standard of care.
Moreover, Brightman, as plaintiff points out in opposition, never opined specifically as to whether twisting the nipples, as plaintiff has alleged Karamitsos did to her, is typical of a breast exam in this circumstance. There are two questions of fact remaining as to the alleged nipple twisting: whether it happened and whether it was discriminatory harassment. As to the former, Karamitsos testified he did not twist plaintiff's nipples, explaining, "[t]hat's not part of the examination" (Karamitsos tr at 50). While Brightman submitted a supplemental affirmation opining that it was proper for Karatmitsos to examine both breasts when pain in one was complained of (Brightman sup aff, ¶ 7), Brightman does not address the appropriateness of twisting. Indeed, on this issue, Brightman seems to assume that Karamitsos's version of the examination is definitive where it conflicts with plaintiff's version. The court cannot make the same assumption. Thus, despite Brightman's affirmation, questions of fact remain as to whether Karamitsos's examination conformed to medical standards, and as to whether his treatment of plaintiff as a whole, including his comments and behavior at plaintiff's prior visits, as well as the examination of plaintiff in January 2014, violated the City HRL's proscription against gender discrimination.
Karamitsos's argument that, without the aid of expert testimony, jurors are ill-equipped and unable to reach a conclusion about whether his conduct violates the City HRL is unpersuasive. Karamitsos cites to Fiore v Galang, 64 NY2d 999 [1985]) and other medical malpractice actions, which are distinguishable because plaintiff is bringing a claim under the City HRL, rather than a claim of medical malpractice, which, of course, would require expert testimony as to a deviation from the standard of care. Here, where claims of sexual harassment underpin a claim for a violation of the City HRL, jurors are capable of making a determination without the benefit of expert testimony. Accordingly, the branch of Karamitsos's motion that seeks dismissal of plaintiff's first cause of action for a gender discrimination violation the City HRL must be denied.
To the extent that defendant interprets any responses to his demands for a bill of particulars as a claim for medical malpractice, the court clarifies that plaintiff has never stated a cause of action for medical malpractice.
However, the second cause of action for aiding and abetting a gender discrimination violation against Karamitsos should be dismissed. This claim is illogical, as plaintiff has alleged that Karamitsos was the primary actor in her gender discrimination. Section 8-107 (6) of the City HRL provides that it is unlawful "For any person to aid, abet, incite, compel, or coerce the doing of any acts forbidden under the chapter." Karamitsos, of course, cannot be held liable for aiding, abetting, compelling, or coercing himself into a violation of the City HRL. Thus, the branch of Karamitsos's motion that seeks dismissal of the second cause of action is granted.
Intentional Infliction of Emotional Distress
The tort of intentional infliction of emotional distress is available to parties who have been subjected to "conduct exceeding all bounds usually tolerated by decent society'" (Fischer v Maloney, 43 NY2d 553, 557 [1978] [internal quotation marks and citation omitted]). To be actionable, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Phillips v New York Daily News, 111 AD3d 420, 421 [1st Dept 2013] [dismissing a claim for intentional infliction of emotional distressed against a newspaper for publishing allegedly false quotations from plaintiff that led to her being subjected to persecution from a street gang] [internal quotation marks and citation omitted]).
Here, where Karamitsos has submitted expert testimony, unrebutted by another expert, that his conduct was within the bounds of professional standards, his alleged conduct does not meet the high threshold for a claim for intentional infliction of emotional distress. In short, the alleged conduct discussed above, which raises a question of fact as to a violation of the City HRL, does not appear to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.
Battery
The elements of battery are: an (1) intentional (2) bodily contact that was (3) of an offensive nature (Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32 [1st Dept 2011]; Cerilli v Kezis, 16 AD3d 363 [2d Dept 2005]). The Court of Appeals has specified that the first element of intent is satisfied by an "intent to cause a bodily contact that a reasonable person would find offensive" (Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003] [internal quotation marks omitted]).
Here, as there are questions of fact as to whether Karamitsos twisted plaintiff's breasts and whether doing so comported with standards of medical care, there are also questions of fact as to all three elements of battery. Karamitsos's argument that plaintiff consented to the bodily contact by scheduling the appointment and failing to complain to a nurse that was in the room at the time are unavailing. If there is a question of fact as to whether nipple-twisting is part of a typical breast examination when a patient complains of breast pain, then there is equally a question of fact as to whether plaintiff impliedly consented to the contact by scheduling an appointment to address the pain. Moreover, Karamitsos cites to no cases in which a battery is absolved because plaintiff fails to contemporaneously object to it. Thus, as there are questions of fact as to all three elements of battery, the branch of Karamitsos's motion that seeks dismissal of plaintiff's battery charge must be denied.
Punitive Damages
Karamitsos argues that plaintiff's claim for punitive damages should be dismissed, as plaintiff cannot establish that his conduct was malicious or outrageous. Karamitsos relies on Brightman's affirmation, in which she states that Karamitsos's examination conformed with medical standards.
Plaintiff argues that an application for dismissal of punitive damages is premature. In support of this argument, plaintiff cites to Messner v Medtronic, Inc., a trial court case that stated that "[i]n New York punitive damages may not be considered until there is a finding of compensatory damages" (Messner v Medtronic, Inc. 39 Misc 3d 1213 [A]). While the court does not agree with the proposition that there is never is circumstance in which it may decide the question of punitive damages as a matter of law at the summary judgment stage, it finds that, in these circumstances, where many questions of fact remain, resolution of the question of punitive damages is premature.
II. Advantagecare's Motion for Summary Judgment (motion seq. No. 003)
Plaintiff's only cause of action against Advantagecare is for discrimination under the City HRL based on its vicarious liability as the owner of the owner of public accommodation involved in the alleged discrimination. As discrimination claim is not being dismissed against Karamitsos, nor can it be dismissed against Advantagecare.
The City's HRL, at section 8-107 (13) (a), entitled "Employer liability for discriminatory conduct by employee, agent, or independent contractor," provides that "[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of any provision of this section other than subdivisions one and two of this section." This provision clearly applies to public accommodations, which is subdivision 4 of the section, and thus not excepted from its application. Accordingly, as there is a question of fact as to whether Karamitsos violated subdivision 4, there is likewise a question of fact as to whether Advantagecare is liable for that violation under subdivision 13.
Advantagecare tries to avoid this straightforward conclusion by citing cases, such as N. X. v. Cabrini Med. Ctr., 97 N.Y.2d 247 (2002), that stand for the proposition that employers are not responsible, under the doctrine of respondeat superior, for the intentional torts of their employees. This argument is a misleading sleight of hand: while plaintiff has a claim against Karamitsos for an intentional tort, battery, she does not make any respondeat superior claims against Advantagecare based on the battery. In short, Advantagecare argues against a claim that is not being made. The only cause of action against Advantagecare is pursuant to the City HRL. Thus, as there is a question of fact as to Advangecare's liability under the City HRL, the branch of the motion seeking dismissal of the first cause of action as against it is denied.
Advantagecare also argues that the second cause of action should be dismissed, even though it is not brought against it. In any event, the question is moot because the court, as discussed above, is dismissing the second cause of action. Finally, Advantagecare moves to dismiss any claims against it for punitive damages. Typically, this would be granted, as Advantagecare's liability is vicarious. However, this application, like the corresponding one in Karamitsos's motion, is premature, as courts can allow for a finding of punitive damages where even where employer stems from section 8-107 (13) (see Jordan v Bates Adv Holdings, Inc., 11 Misc3d 764 [Sup Ct, NY County, 2006, Acosta, J]). Here, questions of fact remain -- as to Advantagecare's alleged failure to respond to plaintiff's complaint, whether it has any process in place to deal with such complaints, and whether or not any sexual harassment training was afforded to Advantagecare doctors -- that could possibly touch on the issue of punitive damages (see generally Administrative Code §§ 8-107 [13] [d] and [e])
CONCLUSION
Accordingly, it is
ORDERED that defendant Advantagecare Physicians, P.C.'s motion to dismiss the complaint is granted only to the extent that plaintiff's second cause of action is dismissed; and it is further
ORDERED defendant Harry Karamitsos's motion for summary judgment is granted only to the extent that second cause of action, for aiding and abetting gender discrimination, and the third cause of action, for intentional infliction of emotional distress are each dismissed; and it is further
ORDERED that plaintiff is to serve a copy of this decision, upon notice of entry, within 20 days.
This constitute the order and decision of the court. Dated: January 26, 2018
ENTER:
/s/_________
Hon. CAROL R. EDMEAD, JSC