Page 8 - Court of Appeal and Appellate Practice

S8 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

COURT OF APPEALS: TORTS

By Jefrey S. Lichtman
And Richard A. Menchini

Medical Monitoring

Cause of Action

Rejected in One of hree

Stand-Out Cases

O

ver the past year, the New York closing information regarding the sexually safekeeping a patient’s conidential medical
Court of Appeals has handed down transmitted disease for which Doe was being information is limited to those risks that are
three decisions that provide clear treated. Doe sued the clinic for common law reasonably foreseeable and to actions within
and broadly applicable interpretation of both breach of iduciary duty to maintain the con- the scope of employment.” The court sought
statutory rules and common law principles identiality of personal health information, to maintain consistency with other cases
in tort cases. These cases deal with a medi- breach of contract, negligent hiring, negli- in which it had declined to hold a medical
cal facility’s duty to protect patients’ medical gent inliction of emotion distress, intentional corporation to a “heightened duty” for an

records and the employer’s vicarious liabil- inliction of emotional distress, and breach of employee’s conduct under the doctrine of
ity for acts of employees performed outside duty to maintain the conidentiality of person- respondeat superior. The court noted the
the scope of their employment, whether al health information under three statutes.2 general rule that an employer may only be
New York recognizes medical monitoring The clinic moved to dismiss.
held vicariously liable for the tortious acts of
as an independent cause of action or as an
At irst instance, the Western District of its employees if those acts were committed in
New York granted the clinic’s 12(b)(6) motion furtherance of the employer’s business and
to dismiss all eight claims.3 Doe appealed the within the scope of employment.
dismissal of ive of the eight causes of action The court referred to its earlier decision

to the Second Circuit. On appeal, the Second in N.X. v. Cabrini Med. Ctr.,6 which involved
Circuit afirmed the dismissal of four of the a physician employee who had sexually
remaining ive causes of action, inding that assaulted a sedated patient. The court held
the nurse’s actions were not foreseeable there that, since the sexual assault commit-
to the clinic, nor were her actions taken ted by the hospital employee was outside the
within the scope of her employment.4 The scope of employment, having been commit-
court explained that in his complaint Doe ted for wholly personal motives, the hospital
had alleged that the nurse was motivated by could not be held vicariously liable. Seek-
purely personal reasons which had nothing ing to avoid creating a “heightened duty,”7

to do with Doe’s treatment and care and, as the court rejected the Third Department’s
such, those actions could not be imputed to 2000 decision in Doe v. Community Health
the clinic on the basis of respondeat superior. Plan-Kaiser,8 declining to adopt a rationale
The court concluded that the inal cause of which imposes absolute liability on a medi-
action concerning the availability of a com- cal corporation for any disclosure through
mon law cause of action directly against the an employee’s dissemination of a patient’s
clinic for breach of iduciary duty was a ques- conidential medical information.
tion for the New York Court of Appeals, and The court stated that where a plaintiff’s
stayed the appeal pending an answer to this case against a medical corporation employer element of damages, and the liability of a

certiied question:
fails because an employee was acting outside product manufacturer after substantial but
Whether, under New York law, the com- the scope of employment, such a inding does foreseeable modiications have been made
mon law right of action for breach of the not prevent an action in tort for the negligent to an allegedly defectively designed product.
iduciary duty of conidentiality for the actions of the medical corporation’s own con- In John Doe v. Guthrie Clinic,1 the court
unauthorized disclosure of medical infor- duct, including “negligent hiring, supervision
considered an employer’s vicarious respon-
mation may run directly against medical sibility for the actions of its employees in the
corporations, even when the employee context of a medical facility’s duty to protect
responsible for the breach is not a physi- patients’ medical records. Guthrie Clinic’s
JEFFREY S. LICHTMAN and RICHARD A.
cian and acts outside the scope of her MENCHINI are partners at O’Hare Parnagian. patient John Doe (proceeding in this action
employment?5
FIONA LEY, special counsel with the irm, assisted under a ictitious name to protect his privacy
The Court of Appeals, with Chief Judge interests) iled a federal court action against
Jonathan Lippman writing for the major- with the preparation of this article.
the clinic after one of its employed nurses,
ity, answered the question in the negative, who was also Doe’s girlfriend’s sister-in-law,
holding that “a medical corporation’s duty of
sent text messages to Doe’s girlfriend dis-