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The Appellate Division of the New York Supreme Court, First Department, has ruled 3-2 to dismiss a suit against a New York hospital by a woman who was sexually assaulted during an examination there. The ruling in Diaz v. New York Downtown Hospital, 2906, reverses a state supreme court decision that had allowed a suit claiming negligence to go forward against New York Downtown Hospital. The suit was brought by Eva Diaz, who was sexually assaulted during a vaginal sonogram at the hospital by a man who worked for an independent contractor. Eva Diaz argued that the hospital was negligent in its supervision of the man. She submitted expert testimony from a medical professional who said the hospital deviated from acceptable standards because it had no policy requiring that a female employee be present during the sonogram. The expert affidavit cited literature from the American College of Radiology and the American Institute of Ultrasound in Medicine that recommends a woman be present during vaginal sonograms. In January 2000, New York Supreme Court Justice Edward H. Lehner ruled that Diaz’s case was strong enough to proceed to trial, and denied the hospital’s motion for summary judgment. The majority of the First Department panel disagreed with that ruling. The appeals court found that the male employee had been “duly screened” by the independent contractor, and that the hospital did not overlook any signs that he might be dangerous. The majority also called into question the testimony about standard procedures for the exam, finding that the recommendations of the medical associations did not amount to requirements. “Had these two … professional organizations intended to impose a significant industry safety standard, binding on all members/practitioners nationwide, they would have done so in more obligatory terms,” the majority wrote. “It should be presumed that they stated what they intended, a non-binding, suggested procedure, and nothing more.” The majority found that “the failure to abide by guidelines or recommendations that are not generally accepted standards in an industry will not suffice to raise an issue of fact as to a defendant’s negligence.” EXPERT TESTIMONY Justices Angela M. Mazzarelli and David B. Saxe, in a dissent written by Justice Mazzarelli, found that the expert testimony should be given more weight, and that the guidelines of the medical associations “delineated a foreseeable risk.” The expert, the dissent said, was of the opinion that a woman employee is a required participant in the exam. The dissent also found that “by recommending the presence of a woman during a vaginal sonogram, the industry [associations] explicitly recognized the risk of the precise sexual misconduct which took place in this case.” The dissenters objected to the contrast drawn by the majority between Diaz’s case and Miller v. Long Is. R.R., 212 AD2d 515, and French v. Ehrenfeld, 180 AD2d 895. “I would urge that because both emphasize the probative value of expert testimony as to custom and practice, Miller and French actually support denying the instant motion for summary judgment,” Justice Mazzarelli wrote. Both those cases, according to the dissent, reversed trial verdicts for failure to allow expert testimony on common industry practices. Paul A. Shneyer, of Shneyer & Shen in New York, who represented Diaz, said he had yet to speak to his client about whether to appeal. Shneyer expressed dismay that the majority found reason to reject the expert testimony outright rather than consider it for debate in a trial. The hospital was represented by Patricia D’Alvia, of New York’s Martin, Clearwater & Bell. D’Alvia said that the expert testimony failed because it relied only on the medical associations’ recommendations, rather than citing information that suggested a woman employee is present during vaginal sonograms as a matter of course in most hospitals. Justices Joseph P. Sullivan, Eugene L. Nardelli and Milton L. Williams composed the majority.

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