Diaz v. New York Downtown Hospital

Eva Diaz (plaintiff) underwent a transvaginal sonogram at New York Downtown Hospital (the hospital) (defendant). While undergoing the procedure, Diaz was sexually assaulted by a male technician with whom she was left alone. Diaz sued the hospital in a New York trial court on multiple claims, including a negligent-supervision claim. The hospital moved for summary judgment on the ground that it could not be held liable for negligence because it had no prior knowledge that the male technician had a propensity to commit acts of sexual assault. In response, Diaz introduced as an expert witness a board-certified radiologist. The radiologist testified that national radiological organizations had promulgated clinical-practice guidelines recommending that another woman be present during a vaginal sonogram for the patient’s safety. The radiologist further testified that the hospital had deviated from the standard of care by not adopting a policy to execute the recommendation. However, the radiologist did not testify as to whether the guidelines had been adopted and practiced in other hospital settings or how she concluded that adopting such a policy was the accepted standard of care. The trial court entered summary judgment in the hospital’s favor on all of Diaz’s claims except for the negligent-supervision claim. For the negligent-supervision claim, the trial court held that Diaz, by presenting the expert testimony, had created a genuine issue of fact as to whether the hospital had deviated from the accepted standard of care. The hospital appealed. The appellate division determined that Diaz and her expert had not demonstrated that the recommended clinical-practice guidelines were an accepted industry practice or standard from which the hospital had deviated. Diaz appealed.