Chanko v. Am. Broad. Co., Inc. - 2014 NY Slip Op 30116(U) (Sup. Ct.)

Rule:

A motion to dismiss pursuant to CPLR §3211[a][1], requires that the party seeking dismissal produce documentary evidence that "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994]). Plaintiff is provided with every favorable inference and the complaint is construed liberally. A motion to dismiss pursuant to CPLR §3211[a][1], does not require that the plaintiff establish the ultimate success of the allegations (African Diaspora Maritime Corp. v. Golden Gate Yacht Club, 109 A.D.3d 204, 968 N.Y.S. 2d 459 [N.Y.A.D. 1st Dept., 2013]). Dismissal pursuant to CPLR §3211[a][7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled. A cause of action does not have to be skillfully prepared but it does have to present facts so that it can be identified and establish a potentially meritorious claim (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972, supra).

Facts:

Defendants [American Broadcasting Companies, Inc., (ABC) The New York and Presbyterian Hospital (Hospital), Sebastian Schubl, M.D. (Dr. Schubl), Anil S. Ranawat, M.D. (Dr. Ranawat), and Travis Maak M.D. (Dr. Maak)] were involved with a television series titled, "NY Med" which was produced and aired on ABC television and follows the medical staff and patients at Presbyterian Hospital in New York City. In one segment, Mark S. Chanko (Mr. Chanko) was brought into the emergency room in critical condition.Mr. Chanko was heard early in the segment and complaining of pain and was eventually declared dead in the hospital while in the process of undergoing treatment. Mrs. Chanko and family members were present in the hospital but their consent was not obtained. Sebastian Schubl, M.D. was filmed entering the room to advise the family of the death. This was done without the knowledge of the family as well. Dr. Ranawat and Dr. Maak were called in as part of the emergency treatment team. Months after his death, Mr. Chanko's surviving family members, including his wife and children recognized that he was the subject of an "NY Med" segment, ABC released a second version of the episode which deleted the segment involving Mr. Chanko, and that is the only version of the episode currently available to the public. The show was broadcasted "on demand" and was sold by ABC in DVD format. The second amended complaint asserted five causes of action. The first and second causes of action are for violation of Mr. Chanko's estate and the remaining plaintiffs' right of privacy in violation of the New York Civil Rights Law §§ 50 and 51. The second amended complaint asserts a third cause of action for common law invasion of privacy based on intrusion upon private conversations of the surviving family members which were recorded. A fourth cause of action for violation of physician patient confidentiality pursuant to State and Federal Statutes and paragraph 13 of the New York  [*5] State Patients' Bill of rights, and a fifth cause of action claiming the defendants recklessly, deliberately and maliciously caused mental and emotional distress. The Defendants appealed the denied motions. The appellate court granted the motions and dismissed the entire complaint.

Issue:

Did the Plaintiffs have causes of action against all the defendants?

Answer:

No.

Conclusion:

A motion to dismiss pursuant to CPLR §3211[a][1], requires that the party seeking dismissal produce documentary evidence that "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Dismissal pursuant to CPLR §3211[a][7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled. A cause of action does not have to be skillfully prepared but it does have to present facts so that it can be identified and establish a potentially meritorious claim (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E.2d 511, 614 N.Y.S.2d 972, supra). A cause of action based on privacy cannot be sustained against defendants that are not physicians or staff of a facility that provides health related services (Romanello v. Intesa San Paolo, S.p.A., 97 A.D. 3d 449, 949 N.Y.S. 2d 345 [N.Y.A.D. 1st Dept., 2012]). The fourth cause of action cannot be maintained against ABC because it does not provide health-related services and there is no doctor-patient relationship. Against Dr. Schubl and The Hospital, plaintiffs have stated a potentially meritorious fourth cause of action for violation of physician-patient confidentiality. A cause of action for emotional distress requires the establishment of four elements, "(1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing severe emotional distress; (3) a causal connection between the conduct and injury and; (4) severe emotional distress." (Howell v. N.Y. Post Co., Inc., 81 N.Y. 2d 115, 612 N.E. 2d 699, 596 N.Y.S. 2d 350 [1993]). A hospital will be held vicariously liable for the conduct of its employees when it, "authorized, participated in, consented to, or ratified the conduct giving rise to such damages...such that it is complicit in that conduct." (Melfi v. Mount Sinai Hospital, 64 A.D. 3d 26, 877 N.Y.S. 2d 300 [N.Y.A.D. 1st Dept., 2009]).  Plaintiffs stated a potentially meritorious cause of action for the infliction of emotional distress against ABC as well as Dr. Schubl and The Hospital. Dr. Schubl and The Hospital have not established that they would not be liable in tort for breach of duty based on physician-patient relations, outside of the contractual obligations of the patient bill of rights. On the other hand, plaintiffs have not asserted a basis to sustain any of the causes of action asserted in the second amended complaint against Drs. Ranawat and Maak. These two doctors were paged as part of a team treating Mr. Chanko and plaintiffs have provided no basis for singling them out. There is no proof the doctors were aware they were being filmed, since they were not affiliated with Presbyterian Hospital.