WASSERMAN v. MAIMONIDES MEDICAL CENTER (2000)

In an action, inter alia, to recover damages for breach of contract, the plaintiff, Herbert Wasserman, appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated August 21, 1998, which granted the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, a surgeon, performed surgery on a patient at the defendant Maimonides Medical Center (hereinafter Maimonides).   During the surgery, the patient's only kidney was lacerated, resulting in a second operation hours later to remove it.   The patient died several days later.   The morbidity and mortality committee of Maimonides and the surgical department peer review committee evaluated the treatment provided by the plaintiff, and concluded that it met the Maimonides standard of care.   At the request of the defendant Joseph Cunningham, the chief of surgery, a second departmental peer review committee evaluated the treatment rendered due to inconsistencies between the initial peer review findings and the patient's medical records, and concluded that it was questionable if the Maimonides standard of care was met.   The plaintiff was suspended for two weeks and his hospital privileges were reduced.   Alleging that Maimonides breached its medical staff by-laws, the plaintiff commenced this action to recover damages for breach of contract, injurious falsehood, and intentional infliction of emotional distress.

 We disagree with the defendants that the causes of action to recover damages for breach of contract must be dismissed due to the plaintiff's failure to comply with Public Health Law §§ 2801-b and 2801-c.   Since the plaintiff sought only monetary damages, and not to have his suspension lifted or his privileges reinstated, he was not required to present his claim to the Public Health Commission in the first instance (see, Chime v. Sicuranza, 221 A.D.2d 401, 633 N.Y.S.2d 536).   In any event, since the plaintiff was advised of the reasons for the suspension and the reduction in privileges, and because the reasons were related to “standards of patient care, patient welfare, the objectives of the institution, [and the plaintiff's] competency” (Public Health Law § 2801-b[1] ), there was no basis to turn to the Public Health Commission for relief (see, Matter of Libby [Long Is. Jewish-Hillside Med. Center], 163 A.D.2d 388, 558 N.Y.S.2d 116;  Matter of Murphy v. St. Agnes Hosp., 107 A.D.2d 685, 484 N.Y.S.2d 40).   Nevertheless, the causes of action alleging breach of contract were properly dismissed, since they are not based upon the violation of a specific by-law, but rather upon the defendants' alleged failure to act in good faith (see, Saha v. Record, 177 A.D.2d 763, 575 N.Y.S.2d 986;  Farooq v. Fillmore Hosp., 172 A.D.2d 1063, 569 N.Y.S.2d 320;   Dolgin v. Mercy Hosp., 127 A.D.2d 557, 511 N.Y.S.2d 360).

 The cause of action alleging injurious falsehood was properly dismissed because the plaintiff failed to allege special damages with sufficient particularity (see, Drug Research Corp. v. Curtis Publ. Co., 7 N.Y.2d 435, 441, 199 N.Y.S.2d 33, 166 N.E.2d 319;  DiSanto v. Forsyth, 258 A.D.2d 497, 684 N.Y.S.2d 628;  Nyack Hosp. v. Empire Blue Cross & Blue Shield, 253 A.D.2d 743, 677 N.Y.S.2d 485;  Camarda v. Vanderbilt, 147 A.D.2d 607, 538 N.Y.S.2d 16);  L.W.C. Agency v. St. Paul Fire & Mar. Ins. Co., 125 A.D.2d 371, 509 N.Y.S.2d 97.

 The remaining cause of action alleging intentional infliction of emotional distress was also properly dismissed because the conduct complained of did not rise to the level of outrageous conduct needed to support such a cause of action (see, Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699;  Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349;  Vasilopoulos v. Romano, 228 A.D.2d 669, 645 N.Y.S.2d 501;  Andrews v. Bruk, 220 A.D.2d 376, 631 N.Y.S.2d 771).

MEMORANDUM BY THE COURT.