CAMADEO v. Heidie Glover, R.N., et al., Defendants. (2002)

Order, Supreme Court, New York County (Stanley Sklar, J.), entered November 9, 2000, which, inter alia, granted the motion of defendants Gary Leeds, M.D., Beth Israel Hospital and Continuum Services for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

The motion court properly dismissed plaintiff patient's direct claim for her own injury in light of plaintiffs' silence in the face of defendants' assertion that the patient was not pressing such claim.   Notably, plaintiffs' brief does not address the propriety of this ruling.   Dismissal of the patient's direct claim mandates dismissal of her husband's derivative cause of action (see, Balestrero v. Prudential Ins. Co. of Am., 283 App.Div. 794, 128 N.Y.S.2d 295, affd. 307 N.Y. 709, 121 N.E.2d 537).

Viewing the evidence in the light most favorable to plaintiffs as the parties opposing summary judgment (see, David v. New York City Hous. Auth., 284 A.D.2d 169, 171, 727 N.Y.S.2d 404), even if there were issues of fact as to departures from the standard of care, there was no duty of care owing to the non-patient husband.   There was no evidence that defendant physician was ever advised by his patient that her husband suffered from health problems, and, thus, no basis for the physician to believe that the non-patient would be relying on his treatment of the wife and, consequently, no basis upon which a duty to warn the non-patient might be imposed (see, Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 709 N.Y.S.2d 151, 730 N.E.2d 949;  Hecht v. Kaplan, 221 A.D.2d 100, 105, 645 N.Y.S.2d 51;  Ellis v. Peter, 211 A.D.2d 353, 627 N.Y.S.2d 707, appeal dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773).   In view of the foregoing, it is unnecessary to address the other arguments raised by the parties.