On January 20, 2015, Judge Katherine Polk Failla of the United Stated District Court, Southern District of New York, rendered a decision favorable to defense of hospitals or professional practices defending negligent hiring and supervision claims in Zeak v. U.S.A. The court ruled that since the court dismissed the medical malpractice claim, the negligent hiring and supervision claim was found to be derivative. Specifically, the court ruled that the negligent hiring and supervision claim was predicated on the underlying malpractice tort. The court ruled that since the malpractice claim had been dismissed previously, the remaining negligent hiring and supervision claim could not survive.
Moreover, the court ruled that, “To state a claim for negligent supervision or retention under New York law, in addition to the standard elements of negligence, a plaintiff must show: [i] that the tort-feasor and the defendant were in an employee-employer relationship; [ii] that the employer “knew or should have known of the employee’s propensity for the conduct which caused the injury” prior to the injury’s occurrence; and [iii] that the tort was committed on the employer’s premises or with the employer’s chattels.” Thus, dismissal was also due to plaintiff’s failure to establish that the alleged malpractice occurred outside the scope of the surgeons’ employment at the defendant’s hospital. The court stated that, “Generally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee’s negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention. This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training.”
Finally, dismissal was granted because plaintiff could not establish that defendant “‘knew or should have known of the employee’s propensity for the conduct which caused the injury’ prior to the injury’s occurrence.”
Hospitals and Risk Managers may take solace in the protection provided by this ruling, but should be wary of possible claims arising against employees with a demonstrated, “propensity” to act in a negligent manner. This may open the door to a claim for negligent hiring and retention when a malpractice claim is unavailable due to a missed statute of limitations or on other grounds.
By Dylan C. Braverman, Esq.