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Noto v. St. Vincent's Hospital & Medical Center

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 1990
160 A.D.2d 656 (N.Y. App. Div. 1990)

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. Giugliano

Opinion

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.


Summaries of

Noto v. St. Vincent's Hospital & Medical Center

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 1990
160 A.D.2d 656 (N.Y. App. Div. 1990)

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. Giugliano

affirming a grant of summary judgment in favor of the defendant hospital, where the attending psychiatrist engaged in sexual relations with the plaintiff after she had been discharged and after he had ceased treating her as his patient

Summary of this case from Zeranti v. United States

In Noto v St. Vincent's Hosp. Med. Ctr. (160 A.D.2d 656, 656-657, lv denied 76 N.Y.2d 714) we held, on facts virtually indistinguishable from those presented herein: "[T]here 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.

Summary of this case from Koren v. Weihs
Case details for

Noto v. St. Vincent's Hospital & Medical Center

Case Details

Full title:WENDY NOTO, Appellant-Respondent, v. ST. VINCENT'S HOSPITAL AND MEDICAL…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 26, 1990

Citations

160 A.D.2d 656 (N.Y. App. Div. 1990)
559 N.Y.S.2d 510

Citing Cases

Zeranti v. United States

Id. at 561, 593 N.Y.S.2d 222. Finally, in Noto v. St. Vincent's Hosp., 160 A.D.2d 656, 559 N.Y.S.2d 510 (1st…

Dupree v. Giugliano

The plaintiff's expert testified that because of the particularly sensitive nature of the relationship…