Adonaid Medina, of our Appellate Team, secured the affirmance of the dismissal of a complaint from the Appellate Division, Second Department. The action was commenced for alleged medical malpractice, wrongful death, negligent hiring, supervision, and retention, loss of consortium, and loss of parental guidance, in relation to the care and treatment provided by our client, a major hospital in the NYC metropolitan area. The plaintiff’s decedent, then a 46 year-old female patient, was treated in the Intensive Care Unit, after suffering an asthma attack, followed by anoxic encephalopathy, and cardiac arrest.  Our office promptly moved for dismissal on statute of limitations grounds as to the medical malpractice and wrongful death causes of action, as well as the loss of consortium claims as derivate of the untimely claims. The motion also demonstrated that the complaint failed to state a cause of action for alleged negligent hiring, supervision, and retention.  The Supreme Court, Kings County, Judge Ellen Spodek, granted the motion and dismissed all the claims asserted. The plaintiff appealed from the portion of the order dismissing the claims for negligent hiring and retention, as well as the claim for loss of consortium.   The plaintiff argued that the there is no statutory requirement that causes of action sounding in negligent hiring, retention, and supervision be pleaded with specificity. Plaintiff further argued that the loss of consortium claim was timely interposed, and was not subject to the statute of limitations applicable to the medical malpractice cause of action.

The Appellate Division, Second Department, unanimously agreed with our arguments that the trial court properly granted the portion of the motion seeking dismissal of the negligent hiring, retention, and supervision claims, as the complaint failed to sufficiently allege that the defendant hospital knew, or should have known, of a propensity on the part of any employee or employees to commit a wrongful act.  With respect to the loss of consortium claim, the Second Department agreed that the cause of action was derivative of the dismissed medical malpractice claim. This decision reiterates the long-held defense bar’s position that derivative causes of action, such as a claim for loss of consortium, are dependent of the main claim, such as a medical malpractice cause of action, and dismissal of the latter as untimely, requires dismissal of the derivative claims as a mater of law.