842 N.Y.S.2d 558 | N.Y. App. Div. | 2007
Lead Opinion
OPINION OF THE COURT
It is now part of the declared public policy of the State of New York to protect every individual’s right to keep medical treatment private and personal and medical records confidential (see Public Health Law § 2803-c [1], [3] [f]). As a result, when a state-licensed entity breaches that right—and especially when it does so in connection with a particularly sensitive medical procedure—more may be involved than simply a private wrong.
In the case now before us, a 20-year-old unmarried woman who lived with her parents decided to terminate her pregnancy at the defendant, Long Island Surgi-Center (hereinafter the Center). Because her parents strongly disapproved of premarital sex and were implacably opposed to abortion, she was determined to keep her decision from them. Consequently, when she first contacted the clinic to arrange for the procedure, she provided her cell phone number and gave specific instructions never to call her at home. Nevertheless, a day after the abor
The core question presented on this appeal is whether, in the young woman’s subsequent action to recover damages, inter alia, for wrongful disclosure of confidential medical information, it was error for the trial court to submit the issue of punitive damages to the jury. We hold that, under the circumstances of this case, it was not.
I
According to the evidence presented at trial, on October 14, 1999, the plaintiff underwent an abortion at the Center. Upon first contacting the Center the day before, she specifically instructed a member of its staff that her home phone number was not to be used and that all calls to her were to be made to her cell phone number, which she provided. The plaintiff lived with her parents who were practicing Roman Catholics, strongly opposed to both premarital sex and abortion, and she did not want them to know about the procedure.
On the plaintiffs preoperative history and patient questionnaire form, which was filled out on October 13, 1999, the plaintiff’s home phone number had been handwritten, then crossed out. The form also listed the plaintiff’s cell phone number, as well as her work number. The nurse who filled out the form did not know why the plaintiffs home phone number had later been crossed out, although she conceded that one possibility was that the plaintiff did not want to be contacted there.
The Center’s administrator testified that, whenever a patient did not wish to be called at a certain number, the proper practice was for the nurse or admitting clerk to cross it out and write “[n]ot to be called or don’t call.” Another nurse, however, testified that the practice was simply to write “do not call, patient’s requesting” or not to write the number down at all. Two other nurses testified that the practice was to write the number down, without crossing it out, preceded by the notation “do not call at” or “do not call this number.” It is undisputed that the Center had no special form to record a patient’s instructions regarding confidentiality and privacy, nor did it have any written plan to protect patient confidentiality. In fact, the Center’s only written “Confidentiality Policy” consisted of a statement
Moreover, it is undisputed that, upon the plaintiffs admission to the Center, administrative personnel used her insurance information to generate preprinted labels that were then prominently affixed to nearly every page of her medical record. The only contact information listed on the labels was the plaintiffs home telephone number, with no mention of the plaintiff’s request not to be called there.
In accordance with the Center’s procedures, upon the plaintiffs admission to the Center, she read and signed a form listing her rights as a patient. Among them was the right to privacy and confidentiality of her medical information and records. It is undisputed that the plaintiff never waived that right, and never authorized anyone at the Center to discuss her treatment with anyone else.
The plaintiff underwent the abortion without complication and was discharged the same day. Ordinarily, consistent with the requirements of the State Hospital Code (see 10 NYCRR 756.3 [e]), a determination of the plaintiffs blood group and Rh type would be made prior to the procedure, as the results would determine whether she needed an injection of Rh immune globulin within 72 hours of the procedure. However, part of the plaintiffs blood test results was still pending on the day of the abortion, and therefore, upon her discharge, she was told to follow up with her admitting physician as soon as possible to obtain her missing blood test results. As instructed, the plaintiff called the admitting physician the next morning and was told that her blood test results were in and that she would not require the injection. The Center apparently received a faxed copy of the plaintiffs blood test results from her physician at approximately 8:42 that morning, but the information was not entered in the plaintiffs chart.
Later that afternoon, evidently unaware that the blood test results had been received, a nurse at the Center followed her supervisor’s instructions to check on whether the plaintiff had obtained her missing blood work “because that was something that was of concern.” Using the only telephone number appearing on the preprinted label affixed to the top right corner of the
The plaintiff immediately complained to the Center regarding the breach of confidentiality. An investigation was subsequently conducted by the New York State Department of Health’s Office of Health Systems Management, which determined, inter alia, that the nurse who had called the plaintiff’s mother had revealed privileged information without the plaintiffs permission, and that the Center had subsequently failed to respond to the plaintiffs verbal and written complaints. Nevertheless, the nurse in question retained her position with the Center, and her supervisor—who had participated in the Department of Health’s investigation—was apparently unaware that the Department had found that the nurse’s conduct amounted to a breach of patient confidentiality.
When the plaintiff later commenced this action, asserting causes of action alleging breaches of confidentiality, privacy, and fiduciary duty, and seeking compensatory and punitive damages, the Center conceded liability, and the matter proceeded to trial on the question of damages. The jury awarded the plaintiff the sum of $65,000 for past and future emotional distress and the sum of $300,000 in punitive damages. The Supreme Court denied the Center’s motion to set aside the verdict pursuant to CPLR 4404 and entered judgment. The Center appeals, challenging, inter alia, the award of punitive damages.
II
The Court of Appeals has most recently addressed the question of punitive or exemplary damages in Ross v Louise Wise Servs., Inc. (8 NY3d 478 [2007]), a case involving an adoption that occurred in 1961. The plaintiff adoptive parents sued the defendant, an adoption agency, for having intentionally concealed from them the history of schizophrenia and other severe emotional disturbances in the child’s biological family. In
Our dissenting colleagues cite this holding as instructive because, in their view, the adoption agency’s conduct was “far more egregious than the negligence at issue in this case, and resulted in far more devastating consequences” (infra at 91). The dissenters observe that, “[d]uring his childhood, [the adopted child] exhibited severe behavioral problems, prompting the plaintiffs to seek psychiatric help for him. As [the child] grew older, his behavior became increasingly violent, and he was eventually diagnosed as a paranoid schizophrenic” (infra at 92). Indeed, as described by the Court of Appeals, although the adoptive parents contacted the agency on several occasions during the child’s early years to report his difficulties and ask questions about his family history, the agency continued to withhold the fact that there was a history of schizophrenia on both sides of his family. Following the child’s graduation from high school in 1978, the adoptive mother felt compelled to move out of the family home with the couple’s younger daughter because she feared for their physical safety. Finally, on one night in 1995, the adoptive father awoke to find his adoptive son about to strike him with a large flashlight. The child was taken to Bellevue Hospital, where he was diagnosed as a paranoid schizophrenic.
This tragic sequence of events would, at first blush, seem to cry out for punitive sanctions against the agency—sanctions
“The complaint here includes a single cause of action for wrongful adoption and fraud at the time of the adoption. There are no separate counts of fraud concerning conduct in later years. Thus, even though no justification may exist, for example, for the Agency’s failure to disclose information to the doctors plaintiffs consulted for [the adopted child] in the 1970s, the fraud of wrongful adoption must center on the conduct that induced the prospective parents to accept the child. Because we cannot conclude from the record that the initial concealment was motivated by malice so as to warrant punitive damages, or that these damages would deter future reprehensible conduct, we limit plaintiffs’ potential recovery to compensatory dámages” (Ross v Louise Wise Servs., Inc., 8 NY3d at 491 [emphasis supplied]).
Additionally, our dissenting colleagues take the view that punitive damages are not available here because the conduct complained of was undertaken in good faith and out of concern for the plaintiffs well-being. We agree that the record does not demonstrate a bad-faith, intentional violation of the plaintiffs rights or an act done maliciously with the purpose of causing injury. But we do not read New York law as making proof of bad faith or malicious motive a necessary element of all demands for punitive damages.
New York does not recognize an independent cause of action for punitive damages. Instead, “[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action” (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]). Demands for punitive damages usually arise in the context of intentional torts such as fraud, libel, or malicious prosecution, and therefore the availability of punitive damages is often discussed in terms of conduct that is intentional, malicious, and done in bad faith. In Ross v Louise Wise Servs., Inc., for example, the sole cause of action in issue was based on wrongful
These cases teach that the egregiousness of a tortfeasor’s conduct, and the corresponding need for deterrence, cannot be made to depend solely on the tortfeasor’s intent or bad faith, but must also take into account the importance of the underlying right or public policy jeopardized by the tortfeasor’s conduct. Were it otherwise, courts would be powerless to deter the sort of wantonly reckless or grossly negligent conduct that tramples on the rights of others or puts their safety at risk. And we believe that the more important the right at issue, the greater the need to deter its violation.
We decline to hold that, as a matter of law, the callous, reckless, or grossly negligent disregard of an individual’s right to the privacy and confidentiality of sensitive medical information—a right protected by the declared public policy of this State (see Public Health Law § 2803-c [1], [3] [f])—cannot be sufficiently reprehensible and morally culpable to support an award of exemplary damages (see Doe v Roe, 190 AD2d 463 [1993]). We turn, then, to the question of whether, in this case, the evidence adduced at trial was sufficient to submit the issue of exemplary damages to the jury.
III
Our dissenting colleagues suggest that the evidence in this case shows, at most, that the Center’s policies, while perhaps not perfect, were nevertheless generally adequate, and that the injury to the plaintiff was the result of an isolated mistake committed in good faith by a well-meaning but misguided nurse. We respectfully disagree. To the contrary, there was sufficient evidence here for a rational jury to conclude that the Center’s conduct amounted to far more than simple carelessness, but rose to the level of recklessness, gross negligence, and callous indifference to the plaintiff’s rights necessary to support an
First, the Center had no “written plan” to implement the plaintiff’s “right to have privacy in treatment and . . . confidentiality in the treatment of personal and medical records” (Public Health Law § 2803-c [3] [f]), as required under Public Health Law § 2803-c (5). Second, the Center’s unwritten “no-call” policy was, at best, confusing and poorly understood by the nursing staff. Third, even if the Center had had a coherent written policy that was known to its nurses, the effectiveness of that policy would have been undermined by the admission staff’s practice of placing preprinted labels on virtually every page of a patient’s medical file without making any effort to determine whether the contact information appearing on those labels was consistent with, or contrary to, the patient’s instructions. Fourth, in apparent violation of the provisions of the State Hospital Code (see 10 NYCRR 756.3 [e]), the Center performed the procedure and discharged the plaintiff without having first obtained her full blood test results, thereby unnecessarily creating the need to contact her quickly—a need that led directly to the breach of confidentiality. Fifth, although received by the Center on the morning following the plaintiffs discharge, the missing blood test results never found their way into the plaintiffs chart, further contributing to a pressing need to contact her. Sixth, as a consequence of the Center’s failure to record the receipt of the blood work, a nurse felt impelled to reach out to the plaintiff and did so using her home number because it was the only telephone number appearing on the label affixed to the Center’s telephone follow-up form. And, seventh, the nurse apparently felt unconstrained by any policy of the Center from disclosing confidential patient information to a person she knew to be someone other than the plaintiff.
In the dissenters’ view, the foregoing “is wholly lacking in the element of blameworthiness” (infra at 94), and no valid line of reasoning and permissible inferences could possibly lead a rational juror to conclude otherwise. We respectfully disagree. While the jury in this case might well have concluded that the Center’s conduct was merely careless, that was certainly not the only possible conclusion to be drawn from the evidence— particularly when viewed in the light most favorable to the
In Ross v Louise Wise Servs., Inc., the adoption agency offered an arguably reasonable explanation for its policy in 1961 of not disclosing the medical and psychological history of the child’s birth family. Moreover, an award of exemplary damages in that case would have served no deterrent purpose because, following the conduct complained of, and well before the plaintiffs commenced their action, a law was enacted mandating the very disclosure that had been intentionally denied to the plaintiffs in 1961. Thus, neither the defendant in that case nor other agencies similarly situated were likely ever again to engage in the allegedly tortious withholding from adoptive parents of the medical history of their child’s birth family.
In stark contrast, here there was no justification whatsoever offered for the remarkably casual way in which the Center handled the plaintiffs sensitive medical information, and the need to deter other medical providers from engaging in similar conduct could hardly be clearer. We strongly disagree with the dissenters’ conclusion that “the imposition of punitive damages in this case is completely unnecessary to deter similar conduct in the future . . . [because] corrective action has already been taken by the Center” owing to the fact that “the Department of Health issued a ‘Statement of Deficiencies,’ and required the Center to formulate a plan to correct each specified deficiency” (infra at 97-98). The dissenters fail to mention that the Center’s administrator, who was directly involved in the Department of Health’s investigation, had no specific recollection of its findings, and in fact believed—erroneously—that the agency had concluded that the plaintiffs right of confidentiality had not been breached—a belief which may well explain why no disciplinary action was apparently taken against the nurse who spoke to the plaintiff’s mother, despite the Center’s written policy that “any breach of confidentiality by an employee may be subject to [sic] termination.” Under these circumstances, we simply cannot share the dissenters’ confidence in the deterrent value of regulatory oversight.
IV
Although the issue of punitive damages was properly submitted to the jury in this case, a new trial on the issue is nevertheless required because of errors committed by the trial court.
To begin with, the Center was improperly precluded from introducing evidence regarding the absence of past breaches of confidentiality. Whether the injury-producing conduct was an isolated event or only the latest incident in a continuing pattern
Moreover, although we are aware that a different view has been expressed by other courts as to the requisite evidentiary standard (see Matter of Seventh Jud. Dist. Asbestos Litig., 190 AD2d 1068, 1069 [1993]; Greenbaum v Svenska Handelsbanken, N.Y., 979 F Supp 973 [1997]), we hold that the trial court “erred in failing to charge the jury that the standard of proof regarding the imposition of punitive damages was clear and convincing evidence” (Orange & Rockland Util. v Muggs Pub, 292 AD2d 580, 581 [2002]; see Munoz v Puretz, 301 AD2d 382, 384 [2003]; Sladick v Hudson Gen. Corp., 226 AD2d 263, 264 [1996]; Camillo v Geer, 185 AD2d 192, 194 [1992]).
Finally, contrary to the Center’s contention, the jury’s award of compensatory damages was not excessive (see CPLR 5501 [c]; Fareway Hgts. v Hillock, 300 AD2d 1023, 1024 [2002]; Bert v Port Auth. of N.Y. & N.J., 166 AD2d 351 [1990]), and the Center’s remaining contentions are without merit or need not be reached in light of our determination.
Thus, the judgment is modified, on the law, by deleting the provision thereof awarding punitive damages in the sum of $300,000. As so modified, the judgment is affirmed,, so much of the order dated March 29, 2005, as denied those branches of the defendant’s motion which were to set aside the jury verdict on the issue of punitive damages and for a new trial on those damages is vacated, those branches of the defendant’s motion which were to set aside the jury verdict on the issue of punitive dam
Concurrence in Part
While I am impressed by the passionate views expressed in the majority’s well-written opinion, the single issue that we must determine is whether the facts presented to the jury, when viewed in the light most favorable to the plaintiff, are sufficient to sustain the legal imperative required for the imposition of punitive damages. I conclude, contrary to the view expressed by the majority, that such damages are not legally justified. Accordingly, I would modify the judgment appealed from to eliminate the punitive damages award, rather than remit for a new trial on this issue as my colleagues have agreed to do.
Although many of the relevant facts are set forth in the majority opinion, I highlight some of the testimony presented to the jury for the purpose of providing a more complete picture as to the circumstances underlying this case. At trial, the plaintiff testified that she grew up in Islip, New York, the youngest of five children. The plaintiff’s parents are devout Roman Catholics, who strongly disapprove of premarital sex and are morally opposed to abortion. In early 1999, when she was 20 years old and still living at home, the plaintiff began dating a young man who lived in Connecticut. As the plaintiffs relationship with her boyfriend grew more serious, they became intimate. In the fall of 1999, the plaintiff became pregnant, and after considering her options, she decided to have an abortion. The plaintiffs gynecologist scheduled the abortion at the defendant Long Island Surgi-Center (hereinafter the Center).
On the day before the abortion was to take place, the plaintiff spoke to one of the Center’s nurses, Jean Davis, who was preparing a preoperative questionnaire. When asked to provide contact numbers, the plaintiff gave the nurse her cell phone number and her work number, noting that the nurse already had the number at her parents’ home. The plaintiff testified, however, that she told the nurse to use her cell phone number rather than her home number because she did not want her parents to know about the abortion. On the handwritten preoperative questionnaire completed by nurse Davis, all three of the plaintiffs contact numbers are listed, but the plaintiffs home number is crossed out. However, a printed label bearing the
When the plaintiff came in to have the abortion performed on the following day, the Center’s nurses realized that her medical chart contained only partial blood test results, and did not indicate whether she had tested positive or negative for the Rh factor. Recovery room nurse Joanne Lazzaro testified that this was of concern because if a patient who tests negative for the presence of the Rh antibody does not have a RhoGAM injection within 72 hours of an abortion, she may have a problem with a future pregnancy. After making repeated phone calls to the lab to obtain the plaintiffs full blood test results, nurse Lazzaro instructed the plaintiff to contact her doctor’s office the next day for her test results. While the plaintiff was in the recovery room, nurse Patricia Garcia also advised her that she would be receiving a follow-up call the next day, and allegedly verified the telephone number at which the plaintiff wished to be reached. Nurse Garcia then handwrote the plaintiffs work and cell phone numbers on a follow-up form above another one of the printed labels listing the plaintiffs address and home telephone number. On the follow-up form, the plaintiffs handwritten work number was crossed out, and the phrase “voice mail” was written next to her cell phone number.
On the following day, nurse Julie Kilroy relied upon the contact information listed on the follow-up form by calling the plaintiff at her home number. The purpose of nurse Kilroy’s call was both to determine whether the plaintiff was experiencing any adverse effects from the abortion procedure such as nausea, pain, or dizziness, and to ensure that she had contacted her doctor’s office to obtain her blood test results. Since the plaintiff was recovering from the procedure at her boyfriend’s home in Connecticut, nurse Kilroy spoke to the plaintiffs mother, and advised her that the plaintiff needed to obtain her Rh factor from her lab results. Although nurse Kilroy did not specifically inform the plaintiffs mother of the nature of the procedure she had undergone, the plaintiffs mother surmised that she had had an abortion.
With regard to the Center’s confidentiality policies, administrator Katherine Scheuermann testified that only a small number of abortions were performed at the facility each year, but that there was a procedure in place for protecting a patient’s
The plaintiff testified that her formerly close relationship with her parents became strained after they learned of her abortion, and that her mother’s response made her feel guilty and that she had committed a sin. According to a social worker who counseled the plaintiff, the emotional pain and psychological harm caused by the Center’s breach of confidentiality were permanent because the breach altered the plaintiffs relationship with her parents. At the conclusion of the damages trial, the jury awarded the plaintiff the sum of $35,000 for past emotional distress and the sum of $30,000 for future emotional distress. The jury also assessed punitive damages against the center in the sum of $300,000.
I concur with the conclusion of my colleagues in the majority that the compensatory damages awarded by the jury for the plaintiffs past and future emotional distress were not excessive. However, I believe that the jury’s award of punitive damages should be set aside because such damages are not warranted by the facts of this case.
Punitive damage awards serve two important societal functions: to punish a wrongdoer for morally culpable conduct which goes far beyond mere negligence, and to deter others from engaging in similar conduct (see Walker v Sheldon, 10 NY2d 401, 404 [1961]). Such damages are not designed to compensate a plaintiff for the injuries he or she has suffered (see Home Ins.
Since a punitive damage award reflects society’s condemnation of a wrongdoer, such an award should be “reserved for rare cases exhibiting malice, fraud, oppression, insult, wantonness, or other aggravated circumstances which effect [sic] a public interest” (Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 58 [1990], affd 77 NY2d 981 [1991]; see Walker v Sheldon, 10 NY2d 401 [1961]). Indeed, it has been observed that
“[something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” (Prosser and Keeton, Torts § 2, at 9-10 [5th ed 1984]; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993]).
As it must be the role of the court to provide oversight to ensure that punitive damages are not improperly or unwisely awarded, I would be remiss if I did not voice my objection to the imposition of such damages in this case, where the conduct at issue was motivated solely by concern for the plaintiffs health. In this case, the plaintiff sought punitive damages on the theory that the Center’s procedures for preserving patient confidentiality were so flawed as to constitute a conscious or reckless disregard of her rights. However, the conceded negligence of the Center and its nurses does not rise to the level of conduct so reckless as to amount to a conscious disregard of the rights of others. The majority emphasizes that the Center and its nurses made more than a single mistake, that the nurses had differing understandings of the Center’s confidentiality policy, and that the Center had no written policy. While the actions of the nursing staff reflect a lack of proper training, this is not a situation in which a health facility flagrantly disregarded the rights of its patients by having no policy in place to safeguard the confidentiality of medical information. Despite minor inconsistencies in the testimony of the Center’s nurses regarding the precise pro
Although in hindsight it is easy to fault the Center for not placing the plaintiff’s blood test results in her medical file as soon as they were received, the fact remains that the nurse who made the follow-up call to the plaintiffs home was unaware that the results had been received. Thus, by calling the plaintiffs home later that day, the nurse sought only to ensure her well-being. Furthermore, the majority’s assertion that a rational jury could have found that the nurse disclosed to the plaintiffs mother that she had had an abortion is not supported by the record. Notably, nurse Kilroy testified that she would never mention the name of the surgical procedure the patient had undergone when leaving a message during a follow-up call. Moreover, an abortion is obviously not the only type of procedure which can result in vaginal bleeding, and in fact only a very small number of abortions were performed at the Center. Therefore, nurse Kilroy’s disclosures were not tantamount to disclosing the abortion. In pointing this evidence out, I am by no means suggesting that punitive damages may only be awarded where acts of intentional wrongdoing have been committed. Indeed, as some of the cases cited by the majority demonstrate, there are certainly situations in which it is appropriate to award punitive damages for reckless conduct in the absence of malicious motive. However, it cannot be denied that the lack of a malicious motive is a highly relevant consideration when assessing whether a defendant’s conduct warrants the imposition of a form of damages which exist solely to punish and deter wrongdoers.
The Court of Appeals’ most recent discussion of the issue of punitive damages, set forth in Ross v Louise Wise Servs., Inc. (8 NY3d 478 [2007]), is instructive. In Ross, where the defendant’s conduct was far more egregious than the negligence at issue in this case, and resulted in far more devastating consequences, the Court of Appeals nevertheless concluded that the plaintiffs
Prompted by a newspaper article published in 1999 about a couple who had adopted a child from the same agency without knowing that the biological family’s history included schizophrenia, the plaintiffs sought and obtained Anthony’s medical records that spring. Shortly after receiving the records, the plaintiffs commenced an action against the agency seeking compensatory and punitive damages, inter alia, for wrongful adoption. The agency thereafter moved for summary judgment, relying upon evidence that it was the practice of social workers and other professionals in the adoption field in the 1960s not to disclose information that could be viewed as negative and which was not believed to be hereditary for fear that such information would have an adverse impact on how the parents would nurture their adoptive child. This practice remained in effect until the Social Services Law was amended in 1983 to require that medical histories be disclosed to preadoptive parents.
Although the Court of Appeals prefaced its analysis by noting that it was troubled by the agency’s intentional concealment of facts about Anthony’s background, it concluded that the agency’s conduct did not evince the high degree of moral
There are, of course, some distinctions between the case at bar and Ross, which include the fact that Ross involved deliberate rather than negligent conduct. Nevertheless, the court’s conclusion that the intentional concealment involved in Ross did not evince the high degree of moral turpitude required for the imposition of punitive damages quite clearly underscores that in this state, such damages are to be reserved for cases of exceptional misconduct.
I am mindful that the negligent disclosure of medical information in this case caused a rift between the plaintiff and her parents, and that all residents of this state—men as well as women—have the right to expect that their medical records will be kept confidential. However, as the plaintiff herself acknowledges, where punitive damages are sought for negligent behavior, the conduct complained of must be “so reckless as to amount to a conscious disregard of the rights of others” (Home Ins. Co. v American Home Prods. Corp., 75 NY2d at 201). In Home Insurance, one of the cases upon which the majority relies, a dispute arose over insurance coverage for a punitive damages award imposed upon the manufacturer of the drug aminophylline. Although the defendant manufacturer was aware that there were risks inherent in the administration of the drug to children in suppository form, it nevertheless failed to warn the medical profession of these risks. As a result of the
Indeed, the cases cited by the majority to demonstrate that punitive damages may be imposed for grossly negligent or reckless conduct amply demonstrate that punitive damages are appropriate only in cases involving conduct which is far more morally culpable than the conduct at bar. While the majority opinion refers to the Center’s conduct as “reprehensible,” it is wholly lacking in the element of blameworthiness present in the authority it relies upon.
For example, in McWilliams v Catholic Diocese of Rochester (145 AD2d 904 [1988]), the plaintiff alleged that his developmentally-disabled daughter was mistreated while she was a resident in a facility operated by the defendant. Among the plaintiff’s allegations were that his daughter had been
Furthermore, in Rinaldo v Mashayekhi (185 AD2d 435 [1992]), where the Appellate Division, Third Department, upheld a jury’s punitive damages award, there was evidence that the defendant was driving while intoxicated, on a heavily congested public street, when he plowed into the rear of the plaintiffs vehicle. There was also testimony that the defendant was driving at an excessive rate of speed, and that he took no action whatsoever to avoid the collision. Thus, Rinaldo provides an example of reckless conduct which jeopardizes public safety, which is completely dissimilar to the instant case.
In the case of Figueroa v Flatbush Women’s Servs. (201 AD2d 613, 614 [1994]), this Court found that an issue of fact existed as to whether the defendant medical center had engaged in gross recklessness or wanton conduct where it appeared that it “may have performed abortions without any legal authority to do so, and in violation of various pertinent New York City and New York State regulations.” However, licensing regulations are clearly aimed at public safety, and a facility which performs abortions without any legal authority to do so places the health and safety of patients at risk.
Health and safety concerns also underlie this Court’s recent decision in Colombini v Westchester County Healthcare Corp. (24 AD3d 712 [2005]), where we found that it would be premature to dismiss a punitive damages claim asserted against a facility administering MRI tests. In that case, a six-year-old child was undergoing an MRI test when an anesthesiologist called for oxygen. A nurse handed the physician an oxygen tank made of ferrous metal, which was drawn into the magnet of the MRI machine, and struck the child in the head and face. The child subsequently died of his injuries. In finding that summary judgment would be premature, this Court noted that the plaintiffs had not had an adequate opportunity to conduct discovery into issues regarding the facility’s safety procedures and training. Notably, the safety procedures at issue in Colombini were literally a matter of life and death.
Although one of the cases cited by the majority, the Appellate Division, Fourth Department’s decision in Doe v Roe (190 AD2d 463 [1993]), also involved a breach of confidentiality, I am not persuaded that the rationale in Doe supports the imposition of punitive damages here. In Doe, the plaintiff advised the defendant physician, who was treating him for ear and sinus problems, that he had tested positive for the human immunodeficiency virus (hereinafter the HIV virus). The plaintiff subsequently filed a workers’ compensation claim in Pennsylvania, claiming that his ear and sinus problems were job-related injuries. An attorney representing the plaintiff’s employer subsequently sent the defendant a subpoena directing her to appear at a workers’ compensation hearing in Pennsylvania, and to bring with her all medical records and reports relating to the plaintiffs treatment. The attorney’s transmittal letter advised the defendant, whose office was located in Syracuse, New York, that she would not have to appear at the hearing if she submitted the requested documents directly to the attorney. In response to the subpoena, the defendant sent the attorney the plaintiffs entire medical chart, which included a reference to the fact that the plaintiff was HIV-positive. The plaintiff thereafter commenced an action seeking compensatory and punitive damages on the theory that the defendant had violated her common-law and statutory duties to preserve the confidentiality of his HIV status by disclosing that status to his employer. The physician moved, inter alia, for summary judgment dismissing the request for punitive damages, and the Supreme Court granted that branch of his motion. In reinstating the punitive damages claim; the Appellate Division, Fourth Department, noted that the defendant had not sustained her burden of demonstrating her entitlement to judgment as a matter of law on this issue because she had submitted no evidence “suggesting a good-faith basis for her improper disclosure of HIV-related information” (Doe v Roe, 190 AD2d at 476). In this regard, the court observed that “[t]he subpoena directed defendant to ap
Notably, the Appellate Division, Fourth Department’s decision to allow the punitive damages claim to stand in Doe was based upon the defendant’s failure to prove a good-faith basis for her improper disclosure, and the inference that she had acted for her own convenience. In contrast, here the evidence adduced at the damages trial demonstrates that the Center’s nurses acted in good faith to ensure that the plaintiff was not experiencing complications from the abortion, and that she had called her doctor’s office to obtain her full blood test results. Moreover, two of the Center’s nurses did ask the plaintiff about which number should be called to contact her. Although errors were admittedly made by pasting over the plaintiffs cell phone number on the preoperative questionnaire and failing to indicate on the follow-up form that she was not to be called at her home number, no inference can be drawn that the nurses acted in bad faith, or placed convenience above the need to protect the plaintiffs confidentiality.
Although the majority also reasons that evidence as to whether there had been any prior breaches of patient confidentiality is relevant to the issue of whether the Center consciously disregarded the plaintiffs rights, I note that the plaintiff made no attempt to introduce such evidence. Indeed, it would not be unreasonable to assume that no such evidence exists, since the Center attempted to introduce evidence that no similar breaches had occurred in the past, but was not permitted to do so. In any event, in the absence of evidence of prior breaches of patient confidentiality, the plaintiffs case remains an isolated incident.
Finally, the imposition of punitive damages in this case is completely unnecessary to deter similar conduct in the future. The record reveals that the New York State Department of Health, Office of Health Systems Management (hereinafter the Department of Health) conducted an investigation into the Center’s breach of confidentiality in this case. Based upon its
In sum, this case calls upon us to make a threshold determination as to whether the conduct of the Center was so culpable as to warrant the imposition of punitive damages to express societal disapproval. In my view, the Center’s negligence did not rise to this level, and thus the plaintiffs claim for punitive damages- should have been dismissed.
McCarthy and Dickerson, JJ., concur with Fisher, J.; Krausman, .J., and .Crane, J.P., concur in part and dissent in part and vote to modify the judgment appealed from by deleting the provision thereof awarding punitive damages, and, as so modified, to affirm the judgment in a separate opinion by Krausman, J.
Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding punitive damages in the sum of $300,000; as so modified, the judgment is affirmed, with costs to the defendant, so much of the order dated March 29, 2005, as denied those branches of the defendant’s motion which were to set aside the jury verdict on the issue of punitive damages and for a hew trial on those damages is vacated, those branches of the defendant’s motion which were to set aside the jury verdict on the issue of punitive damages and for a new trial on those damages are granted, the claim for punitive damages is severed, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on the issue .of punitive damages and the entry of an appropriate judgment thereafter.