HERRGESELL v. GENESEE HOSPITAL II (2007)

Plaintiff commenced this action seeking damages for, inter alia, the wrongful death of decedent, who contracted hepatitis B from her father while residing with and caring for him.   Plaintiff alleged that defendants committed acts of medical malpractice and negligence and violated 10 NYCRR 2.27 in failing to warn decedent, whom they knew or should have known resided with and cared for her father, of the risks of hepatitis B and the need to take precautions against her own infection.   The record establishes that, although decedent's father was the patient of every defendant, decedent was the patient of only defendant Patrick Connors, M.D.

 Supreme Court erred in granting that part of the cross motion of defendants The Genesee Hospital, Dr. Connors, Vincent Chang, M.D., ViaHealth, ViaHealth Home Care, Inc., and ViaHealth Home Care, II, Inc. seeking summary judgment dismissing the complaint against Dr. Connors, and we therefore modify the order and judgment accordingly.  “[A] doctor who actually treats a patient has ‘a duty of care’ toward that patient” (Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 307, 833 N.Y.S.2d 89, quoting McNulty v. City of New York, 100 N.Y.2d 227, 232, 762 N.Y.S.2d 12, 792 N.E.2d 162).   Although Dr. Connors contends that he had no duty to warn decedent as a matter of law because he was unaware, during the relevant time periods, of the relationship between decedent and her father or of decedent's related household and caretaking duties, there is a triable issue of fact concerning when Dr. Connors might have learned that decedent was at risk of contracting hepatitis B. Plaintiff's deposition testimony indicates that, at some point while decedent was caring for her infected father but before she had been diagnosed with hepatitis B, plaintiff asked Dr. Connors why decedent “wasn't getting the shot,” i.e., was not being vaccinated against hepatitis B, whereupon Dr. Connors allegedly responded that he had spoken to defendant Chung Kim, M.D. concerning decedent's potential vaccination and that “Dr. Kim [had] said it wasn't necessary.”

 We further conclude, however, that the court properly granted the cross motion of Dr. Kim as well as those parts of the cross motion of the remaining defendants (hereinafter, defendants) seeking summary judgment dismissing the complaint against them.   A medical provider does not owe a duty to a nonpatient who sustains an injury or contracts an illness from a patient of the medical provider, even if the medical provider knows that the nonpatient is caring for that patient or is a family member or close friend of the patient “unless the [medical provider's] treatment of the patient is the cause of the injury to the nonpatient” (Candelario v. Teperman, 15 A.D.3d 204, 205, 789 N.Y.S.2d 133;  see McNulty, 100 N.Y.2d at 232-234, 762 N.Y.S.2d 12, 792 N.E.2d 162;  Spina v. Jack D. Weiler Hosp. of Albert Einstein Coll. of Medicine, 28 A.D.3d 311, 813 N.Y.S.2d 406;  see also Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 642-643, 709 N.Y.S.2d 151, 730 N.E.2d 949;  Ellis v. Peter, 211 A.D.2d 353, 356, 627 N.Y.S.2d 707, lv. dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773).   In the absence of a provider-patient relationship between defendants and decedent, or some other special relationship, defendants had no duty to warn decedent of the dangers of contracting hepatitis B in caring for her father and of the need to be vaccinated against the disease or to use other precautionary measures (see McNulty, 100 N.Y.2d at 232-233, 762 N.Y.S.2d 12, 792 N.E.2d 162;  Candelario, 15 A.D.3d at 205, 789 N.Y.S.2d 133;  see also Spina, 28 A.D.3d 311, 813 N.Y.S.2d 406;  Hecht v. Kaplan, 221 A.D.2d 100, 105, 645 N.Y.S.2d 51;  Ellis, 211 A.D.2d at 356, 627 N.Y.S.2d 707).   There is no indication in the record, nor indeed does plaintiff allege, that the injury to decedent resulted from defendants' treatment of decedent's father (see McNulty, 100 N.Y.2d at 233-234, 762 N.Y.S.2d 12, 792 N.E.2d 162;  Spina, 28 A.D.3d 311, 813 N.Y.S.2d 406;  Candelario, 15 A.D.3d at 205, 789 N.Y.S.2d 133).   Foreseeability of injury is not a determinant of the medical provider's duty under such circumstances (see Pingtella v. Jones, 305 A.D.2d 38, 40, 758 N.Y.S.2d 717, lv. dismissed 100 N.Y.2d 640, 769 N.Y.S.2d 204, 801 N.E.2d 425, rearg. denied 1 N.Y.3d 594, 776 N.Y.S.2d 224, 808 N.E.2d 360, lv. denied 5 N.Y.3d 703, 800 N.Y.S.2d 374, 833 N.E.2d 709;  see also Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128;  Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 482 N.E.2d 34).  “In the absence of duty, there is no breach and therefore no liability” (DeAngelis v. Lutheran Med. Ctr., 84 A.D.2d 17, 22, 445 N.Y.S.2d 188, affd. 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406;  see Pingtella, 305 A.D.2d at 43, 758 N.Y.S.2d 717;  Weed v. Meyers, 251 A.D.2d 1062, 674 N.Y.S.2d 242;  Ellis, 211 A.D.2d at 355, 627 N.Y.S.2d 707).   The entitlement of defendants to summary judgment is not affected by their alleged violation of 10 NYCRR 2.27, inasmuch as that regulation does not give rise to a private right of action in favor of family members or other members of the public who have contracted or might contract a communicable disease from the medical provider's patient (see Abraham v. City of New York, 39 A.D.3d 21, 25, 828 N.Y.S.2d 502;  Candelario, 15 A.D.3d at 205, 789 N.Y.S.2d 133;  see also Landon v. New York Hosp., 101 A.D.2d 489, 496, 476 N.Y.S.2d 303, affd. for the reasons stated 65 N.Y.2d 639, 491 N.Y.S.2d 607, 481 N.E.2d 239).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by denying in part the cross motion of defendants The Genesee Hospital, Patrick Connors, M.D., Vincent Chang, M.D., ViaHealth, ViaHealth Home Care, Inc., and ViaHealth Home Care, II, Inc. and reinstating the complaint against defendant Patrick Connors, M.D. and as modified the order and judgment is affirmed without costs.

MEMORANDUM: