Christian McCarthy and Joshua Cohen obtained summary judgment dismissing all seven causes of action in a case involving allegations of a purported assault at a hospital facility, allegedly committed by a hospital staff member while the plaintiff was under general anesthesia. The motion established that there was no evidence to support plaintiff’s claims that an assault occurred while she was in the operating suite during or after surgery, a setting in which multiple physicians, nurses, and staff members were continuously present. No assailant was identified, and the record contained no evidence suggesting that an assault ever took place, as plaintiff’s alleged injuries were the result of her operative procedure. The only evidence of an assault consisted of plaintiff’s uncorroborated claims.

The motion further argued that, even assuming arguendo that an assault had occurred, such conduct would have been outside the scope of any employee’s employment, and the hospital therefore could not be held liable as a matter of law.

In opposition, plaintiff contended that the hospital withheld surveillance footage that would have shown the alleged assault. However, for privacy reasons, surveillance cameras are not installed in operating rooms or recovery areas where the plaintiff claimed the incident occurred. Accordingly, the allegation that the hospital withheld evidence was unsupported and without merit.
In its Decision and Order, the Court granted the motion in full and dismissed all seven causes of action, including medical malpractice and lack of informed consent, with prejudice. With respect to the claims sounding in battery, negligence, and negligent infliction of emotional distress, the Court found a complete absence of evidence demonstrating that an assault occurred. The Court further noted that plaintiff failed to submit or cite any medical records supporting her allegations.

The Court also relied on the affirmation of defendants’ expert plastic surgeon, who established that plaintiff’s complaints were a response to the surgery itself, as well as the affirmation of the head nurse of the post-anesthesia care unit, who confirmed that there was insufficient privacy in the PACU for an assault to have occurred without being observed by multiple staff members. These affirmations further supported dismissal of the medical malpractice and lack of informed consent claims, which the Court found were contradicted by signed consent forms contained in the medical records.

Finally, the Court rejected plaintiff’s evidentiary arguments regarding surveillance footage, crediting the hospital’s affidavit confirming that no surveillance video existed in patient-care areas, including the operating rooms or PACU. The Court concluded that plaintiff’s allegations, without supporting evidence, were insufficient to raise a triable issue of fact.