United States District Court, Southern District of New York
November 14, 2002
GARY MEYERS, INDIVIDUALLY AND GUARDIAN AD LITEM FOR SAMARA MEYERS (A MINOR) AND PATRICIA MEYERS, PLAINTIFFS,
FRED EPSTEIN, M.D., IRA RICHMOND ABBOTT, III, M.D., JOHN DOES 1-10, JANE DOES 1-10, ABC CORPORATIONS 1-10 DEFENDANTS.
The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
OPINION AND ORDER
This case arises out of brain surgery performed on Samara Meyers, who
was eleven years old at the time. Plaintiffs, Samara and her parents,
allege that a doctor who had no authority to operate on Samara performed
her surgery — a situation that is colloquially described as "ghost
surgery." The defendants are the doctor who is alleged to have told the
Meyers that he alone would be performing the surgery, Dr. Fred Epstein,
and the doctor who in fact performed the surgery, Dr. Ira Richmond
Abbott, III. The parties have consented to this matter being adjudicated
by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The defendants now move for summary judgment as to all claims pursuant
to Fed.R.Civ.P. 56. In considering the defendants' motion for summary
judgment, the Court accepts the plaintiffs' version of the facts where
supported by admissible
evidence and draws all factual inferences in
plaintiffs' favor. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d
Cir. 1999). For the reasons stated below, the defendants' motion is
granted in part and denied in part.
I. FACTUAL BACKGROUND
___In the summer of 1995, Samara Meyers, the daughter of plaintiffs Gary
and Patricia Meyers, was diagnosed with a brain tumor. Later that year,
Dr. Alan Gardner evaluated Samara and discussed with the Meyers family
the possibility of removing the tumor and certain risks associated with
that procedure. The Meyers family then sought a second opinion from Dr.
Epstein. Dr. Epstein recommended surgery for resection of the brain tumor
and, on August 21, 1995, Samara was admitted to New York University
Medical Center to undergo this operation.
Prior to the surgery, Patricia Meyers signed two consent forms on
behalf of Samara. One form authorized "such diagnostic procedure and
hospital care and such medical treatment by Dr. Epstein, his assistant or
his designees as is necessary in his judgment." The second form
authorized "Epstein/Abbott and those whom he may designate as associates
or assistants to perform [the operation] upon Samara Meyers."
According to the Meyers, Dr. Epstein told them prior to the surgery
that he would be performing the surgery on Samara and that Dr. Abbott
would be assisting him. See Certification of Patricia Meyers, dated April
25, 2002, at ¶ 2. Patricia Meyers allegedly told Dr. Epstein: "I know
this is a teaching hospital, but I want to make sure that no one is
touching my daughter but you." Transcript of the January 3, 2002,
Deposition of Patricia Meyers at 58. Dr. Epstein allegedly responded: "Of
course I will be the only one. I will be the one performing, I will be
the one operating on her." Id. at 59.
Samara's operation took place on August 22, 1995 and was performed by
Dr. Abbott. Dr. Epstein did not participate in the operation at all.
Moreover, Dr. Abbott does not remember discussing anything with Dr.
Epstein during the course of the operation, nor does he remember if Dr.
Epstein was even present during the operation. See Transcript of the
January 16, 2002, Deposition of Ira Richmond Abbott, M.D. ("Abbott Dep.")
at 74-75. In fact, Dr. Epstein had never performed the type of surgery
involved in Samara' s operation, at least from the period that Dr. Abbott
started working at the hospital. See id. at 44.*fn1 Following the
operation, Dr. Epstein came to Samara's parents in the waiting room, where
he told them the surgery went fine and that Dr. Abbott was going to be
coming up also. Transcript of the January 3, 2002, Deposition of Patricia
Meyers at 86-87.
The Meyers have alleged that the surgery caused Samara to experience
left side paralysis, cognitive impairments, and a loss of left side
peripheral vision in both eyes. Joint Pretrial Order, dated April 9,
2002, at 7. They have abandoned their claim, however, that the operation
was improperly performed.
The instant action was filed on February 28, 2001, and the First
Amended Complaint was filed on July 2, 2001. The First Amended Complaint
invokes the Court's diversity jurisdiction, 28 U.S.C. § 1332, and
sets forth a number of claims against the defendants. By virtue of the
statements in the Pretrial Order and their briefing on the
present motion, they are now pursuing only the following claims: (1) a
claim for battery against Dr. Abbott; (2) a claim for malpractice against
Dr. Epstein; and (3) a claim for fraud against Dr. Epstein. The claim for
malpractice against Dr. Epstein, however, relates only to the statements
he made about who would be performing the operation. The Meyers do not
assert a claim of medical malpractice with respect to the performance of
the operation itself.
A. Summary Judgment Standard
A district court may grant summary judgment only if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A genuine issue is one that "may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 250 (1986); McPherson v. Coombe, 174 F.3d at 280. A
material issue is a "dispute over facts that might affect the outcome
of the suit under the governing law." Anderson, 477 U.S. at 248. Thus,
"'[a] reasonably disputed, legally essential issue is both genuine and
material'" and precludes a finding of summary judgment. McPherson, 174
F.3d at 280 (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996)). When determining whether a genuine issue of material fact
exists, courts must resolve all ambiguities and draw all factual
inferences in favor of the non-moving party. McPherson, 174 F.3d at 280.
Nonetheless. "mere speculation and conjecture is insufficient to preclude
the granting of the motion." Harlen Assocs. v. Incorporated Village of
Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
B. Applicable Law
___Because the jurisdiction of this Court is premised exclusively on
diversity, the forum state's choice of law rules govern as to which
State's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941); Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir.
1996). Where tort claims are made, New York's choice of law rules apply
an "interest analysis" under which the law of the jurisdiction having the
greatest interest in the litigation is applied. Curley v. AMR Corp.,
153 F.3d 5, 12 (2d Cir. 1998). In determining which state has the greatest
interest in this litigation, the domicile of the parties and the locus of
the tort are "almost exclusively" the deciding factors Id,; see Cooney
Osgood, 81 N.Y.2d 66, 73-74 (1993). In this case, the Meyers are
domiciled in New Jersey and the defendants in New York. The alleged torts
took place in New York. Under these circumstances — and because
neither party has argued that another state has a greater interest in the
litigation — the Court will apply New York substantive law.
___In a diversity case, the federal court must determine what the
substantive state law is. See McCarthy v. Olin Corp., 119 F.3d 148, 153
(2d Cir. 1997). "Where the substantive law of the forum state is
uncertain or ambiguous, the job of the federal courts is carefully to
predict how the highest court of the forum state would resolve the
uncertainty or ambiguity." Travelers Ins. Co. v. 633 Third Assocs.,
14 F.3d 114, 119 (2d Cir. 1994); accord Elliott Assocs., L.P. v. Banco de
la Nacion, 194 F.3d 363, 370 (2d Cir. 1999). When the
highest court of
the forum state has not spoken, "the best indicators of how it would
decide are often the decisions of lower [New York] courts." In re
Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850 (2d Cir. 1992).
Nonetheless, a court may also consider any authorities that the highest
court of the state might consider, including cases from jurisdictions
outside the forum state on the same or similar issues. Elliott Assocs.,
L.P., 194 F.3d at 370; accord Michaiski v. Home Depot. Inc., 225 F.3d 113,
116 (2d Cir. 2000) (in deciding how highest court would rule, courts
should consider "relevant case law from other jurisdictions on the same
or analogous issues . . ."). This Court's goal, therefore, is to predict
"[w]hat would be the decision of reasonable intelligent lawyers, sitting
as judges of the highest New York court, and fully conversant with New
York jurisprudence." Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650
(2d Cir. 1994) (internal quotation marks and citations omitted).
C. Plaintiffs' Claims
The Meyers assert a claim of battery against Dr. Abbott. In New York,
battery is an "intentional wrongful physical contact with another person
without consent." United Nat. Ins. Co. v. Waterfront New York Realty
Corp., 994 F.2d 105, 108 (2d Cir. 1993); Micalizzi v. Ciamarra,
206 F. Supp.2d 564, 581 (S.D.N.Y. 2002); accord Messina v. Matarasso,
284 A.D.2d 32, 34-35 (1st Dep't 2001) ("[t]o establish a battery, . . .
it need only be shown that the defendant made bodily contact with the
plaintiff and that the contact was either offensive in nature or without
his or her consent") (citations omitted). When a doctor who is not
authorized to operate on a patient operates anyway — or exceeds
the scope of the patient's consent — the doctor has committed a
battery. See Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129-30
(1914) ("Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without his patient's consent commits an assault,
for which he is liable in damages.") (Cardozo, J.); Fogal v. Genesee
Hosp., 41 A.D.2d 468, 473 (4th Dep't 1973).
In cases where the action is premised on the lack of informed consent
of the patient, however, the modern view is to treat the claim as a form
of malpractice based on negligence rather than one for battery. See
e.g., Messina v. Matarasso, 284 A.D.2d 32, 34 (1st Dep't 2001); Rigie v.
Goldman, 148 A.D.2d 23, 28-29 (2d Dep't 1989); Dries v. Gregor,
72 A.D.2d 231, 235-36 (4th Dep't 1980). The theory in these cases is that
the doctor was negligent for failing to outline all of the potential
risks associated with the contemplated surgery. See Rigie, 148 A.D.2d at
29. While the defendants argue that these cases foreclose the Meyers'
battery claim, the Meyers do not contend that they were not informed of
the risks of surgery. Instead, they claim that they did not consent to
Dr. Abbott being the surgeon at all. Therefore, the informed consent
cases are inapposite. See generally Oates v. New York Hosp., 131 A.D.2d 368
(1st Dep't 1987) (permitting battery claim where patient refused consent
to operation and distinguishing cases involving lack of informed
The New York Court of Appeals has not ruled on whether a cause of
action exists for a plaintiff who, as alleged here, was told that one
doctor would be the primary surgeon when in fact another doctor performed
the surgery. Accordingly, the
Court must look to lower court decisions
and decisions of other jurisdictions to determine how the New York Court
of Appeals would rule. See In re Brooklyn Navy Yard Asbestos Litig., 971
F.2d at 850; Bank of New York, 35 F.3d at 650.
The Court is aware of only one New York case on this issue. In Tom v.
Lenox Hill Hospital, 165 Misc.2d 313 (Sup.Ct. N.Y. Co. 1995), the
plaintiff consented to surgery by one doctor, but another doctor performed
it. The court held that the plaintiff could proceed with an action for
battery because the claim was premised on a lack of consent, not a lack
of informed consent. Id. at 315-16. In Perna v. Pirozzi, 92 N.J. 446
(1983), the New Jersey Supreme Court similarly allowed a battery claim
predicated on the wrong doctor theory. The Court reasoned that
[a]bsent an emergency, patients have the right to
determine not only whether the surgery is to be
performed on them, but who shall perform it. A surgeon
who operates without the patient's consent engages in
the unauthorized touching of another and, thus,
commits a battery.
Id. at 461-62. Other states have also permitted battery claims in such
cases. See, e.g., Taylor v. Albert Einstein Medical Center, 723 A.2d 1027,
1036 (Pa. Super. 1998), aff'd in relevant part, rev'd in part, 754 A.2d 650
(Pa. 2000); Pugsley v. Privette, 220 Va. 892, 900-01 (1980). Thus, case
law supports the Meyers' battery claim.
Defendants argue the battery claim cannot proceed because there is a
signed consent form that on its face authorizes Dr. Abbott to perform the
surgery. Were this consent form an enforceable contract that contained a
no-oral-modification clause, the defendants undoubtedly would be entitled
to summary judgment on this issue. In this case, however, there is no
such contract. While the consent form would certainly permit a jury to
find that the Meyers had consented to Dr. Abbott performing the
procedure, the Meyers have provided sufficient evidence to allow a jury to
conclude that they did not give such consent. For example, Patricia
Meyers testified at her deposition that Dr. Epstein told her that he was
going to be the only doctor operating on Samara. In deciding whether the
Meyers in fact consented to Dr. Abbott performing the surgery, a jury
could reasonably find that Dr. Epstein's oral statements that he alone
would perform the surgery overrode any statement in the consent form to
the contrary. See Tom, 165 Misc.2d at 317 (denying summary judgment on
issue of consent even though the language in the consent form gave
permission to the surgeon who performed the surgery). Thus, the consent
form "only raises a factual issue as to whether there was consensual
Defendants also argue that intent to cause injury is an essential
element of battery and the battery claim must be dismissed because there
is no evidence that Dr. Abbott harbored such intent. While the two cases
defendants cite do support this legal proposition, Mager v. Hosp. for
Special Surgery, 1994 WL 240367 (S.D.N.Y. May 26, 1994), and Spinosa v.
Weinstein, 168 A.D.2d 32, 41 (2d Dep't 1991), they are against the vast
weight of New York authority and, when their origins are traced, appear
to be without any support in New York law. In support of its statement
that intent to cause injury is a required element of battery, Mager
relies solely on Spinosa. Spinosa in turn relies on two New York cases:
Murriello v. Crapotta, 51 A.D.2d 381 (2d Dep't 1976) and Mullany v.
125 A.D.2d 457 (2d Dep't 1986). Mullany relies solely on
Murriello. Murriello, however, states this intent requirement without any
citation whatsoever. Nor was its statement necessary to the holding of
the case — that a claim for lack of informed consent is governed by
the statute of limitations applicable to malpractice actions.
Arrayed against this apparently stray line of authority is a much more
significant body of New York case law holding that the only intent
necessary to support a claim of battery is simply the intent to make
contact See e.g., Villanueva v. Comparetto, 180 A.D.2d 627, 629 (2d Dep't
1992) ("Although the injury may be unintended, accidental, or unforeseen
a plaintiff seeking to establish a civil battery need only prove that the
defendant intentionally touched his person without his or her consent.")
(citation omitted); Tom, 165 Misc.2d at 316 ("It is well settled that
the intent to do harm is not a necessary element of a battery."); accord
Miele by Miele v. United States, 800 F.2d 50, 53 (2d Cir. 1986) ("The
gravamen of an action for assault and battery under New York law is the
intent to make contact."); Universal Calvary Church v. City of New York,
2000 WL 1538019, at *22 (S.D.N.Y. Oct. 17, 2000) ("Plaintiffs need only
show that a defendant intended the contact, not that they intended the
specific harm.") (interpreting New York law). The New York Court of
Appeals, although not so holding in explicit terms, appears to be of the
same view. In Maines v. Cronomer Valley Fire Dep't. Inc., 50 N.Y.2d 535
(1980), the court expressly rejected "defendants' suggestion that
plaintiff must allege that defendants intended to bring about the harmful
consequences that ensued" and found that "deliberate intent or conscious
choice to do the act which results in the injury" is all that is required
in an action for assault. Id. at 545-46.*fn2 In so holding, Maines cited
to Masters v. Becker, 22 A.D.2d 118 (2d Dep't 1964) and Baldinger v.
Banks, 26 Misc.2d 1086 (Sup.Ct. Kings Co. 1960), which themselves
explicitly state that there is no requirement of intent to do harm. See
Masters, 22 A.D.2d at 119-20; Baldinger, 26 Misc.2d at 1087. Thus, it
appears that New York law does not require plaintiffs to show that
defendants intended to cause harm.
Nor does New York law support defendants' argument that a battery claim
not only requires a touching but that this touching must be "offensive."
Reply Affidavit, filed May 2, 2002 ("Reply Aff"), at 2. The First
Department has held that "[t]o establish a battery . . . it need only be
shown that the defendant made bodily contact with the plaintiff and that
the contact was either offensive in nature or without his or her
consent." Messina, 284 A.D.2d at 34-3 5 (emphasis added). As noted,
there is a genuine issue of fact as to whether Dr. Abbott's touching was
In sum, the Court concludes that the New York Court of Appeals would
allow a claim of battery to proceed against a doctor who was not
authorized by the patient to perform the surgery. That being said, it is
unclear how the Meyers were damaged by the surgery given that there is no
evidence suggesting that it was medically unnecessary or improperly
performed. Nonetheless, nominal damages are available in a battery case,
see, e.g., Brooker v. State, 206 A.D.2d 712 (3d Dep't 1994), and there
may be some damages that could be shown from the plaintiffs' discovery,
after the fact, that the operation was performed by a doctor different
from the one to whom consent was given. See Perna, 92 N.J. at 461
(permitting damages for mental anguish resulting from such belated
knowledge). Accordingly, summary judgment on the battery claim is
___The Meyers allege that Dr. Epstein was "negligent" because he
"deviated from the standard of care regarding his preoperative handling
of and disclosures regarding Samara Meyers' surgery." See Joint Pretrial
Order at 16; Plaintiffs' Brief I[n] Opposition to Defendants' Motion for
Summary Judgment, dated April 26, 2002 ("Pls. Br."), at 7. The Meyers'
reliance on the "deviat[ion] from the standard of care" makes clear that
their negligence claim is essentially one of malpractice. "The elements
of proof in an action to recover damages for medical malpractice are (1)
deviation or departure from accepted practice, and (2) evidence that such
departure was a proximate cause of injury or damage." See, e.g., Lyons
v. McCauley, 252 A.D.2d 516, 517 (2d Dep't 1998) (citation omitted). The
Meyers have provided evidence from an expert witness, a physician,
stating that the substitution of a doctor different from the one a
patient is told will conduct a surgery constitutes a "deviation from
accepted medical practice." Report of David Befeler, M.D., dated February
12, 2002, at 4-5. This substitution was the proximate cause of any mental
anguish that arose from the belated knowledge that the incorrect doctor
had operated. Accordingly, it appears that the Meyers have met the
elements of a medical malpractice claim.
The defendants counter that this claim is, instead, one of "lack of
informed consent." Memorandum of Law, dated April 23, 2002, at 3. Based
on this contention, they note that New York Public Health Law §
2805-d provides for a number of defenses to claims of lack of informed
consent, some of which would apply in this case. Id. at 3-5. Defendants'
argument, however, in correctly assumes that the Meyers' claim is based
on "lack of informed consent." In fact, the definition of such claims
under New York law makes plain that the malpractice claim does not
implicate lack of informed consent. The statute provides:
Lack of informed consent means the failure of the
person providing the professional treatment or
diagnosis to disclose to the patient such alternatives
thereto and the reasonably foreseeable risks and
benefits involved as a reasonable medical, dental or
podiatric practitioner under similar circumstances
would have disclosed, in a manner permitting the
patient to make a knowledgeable evaluation.
New York Public Health Law § 2805-d(1) (emphasis added). The
plaintiffs in this case make no claim that there was a failure to disclose
"alternatives" to the procedure or the procedure's "risks and benefits."
Thus, this statute on its face does not apply to their situation.
Defendants also argue that the decision in Messina forecloses any claim
based on negligence or malpractice. In Messina, however, the Court was
faced with a situation where it was alleged that a doctor performed a
surgical procedure that was "completely unauthorized" by the patient.
284 A.D.2d at 35. It therefore construed the complaint as reflecting an
intentional tort that was incompatible with any claim of a "deviation
from the reasonable care standard." Id. For this reason, it allowed a
battery claim to go forward against the surgeon who allegedly performed
the unauthorized surgery but not a claim for malpractice. Certainly,
Messina supports the view that the New York courts would permit a battery
claim against Dr. Abbott. Messina, however, does not govern the claim
against Dr. Epstein. Dr. Epstein's alleged action could not be construed
as a battery and, indeed, the Meyers make no such claim. Rather, the only
available claim against Dr. Epstein turns on the statements he made to
the Meyers in his capacity as their doctor. Because the Meyers'
allegation that Dr. Epstein deviated from a proper standard in this
situation is not incompatible with their allegation that Dr. Abbott
committed a battery, Messina does not preclude the Meyers' claim for
Finally, the New Jersey Supreme Court in Perna permitted the
patient to proceed with a malpractice claim against the doctor who
allegedly substituted another doctor for performance of surgery. See
Perna 92 N.J. at 465. As here, this claim was in addition to the
claim for battery. Perna noted that
[A] patient has the right to know who will operate and
the consent form should reflect the patient's
decision. Where a competent patient consents to
surgery by a specific surgeon of his choice, the
patient has every right to expect that surgeon, not
another, to operate. . . . The failure of a surgeon
to perform a medical procedure after soliciting a
patient's consent, like the failure to operate on the
appropriate part of a patient's body, is a deviation
from standard medical care.
Id. The Court therefore concludes that the New York Court of Appeals
would permit a claim of malpractice to be advanced against Dr. Epstein.
The Meyers' claim of fraud against Dr. Epstein rests on three separate
grounds: (1) that Dr. Epstein intentionally misrepresented that he would
be performing the surgery; (2) that he intentionally misrepresented to
the Meyers that a videotape of the operation was unavailable; and (3)
that he intentionally misrepresented to an insurance company that he (as
opposed to Dr. Abbott) performed the operation. See Pls. Br. at 9-11. Each
is discussed below.
a. Identity of Surgeon Claim. Under New York Law, "[w]here a fraud
claim gives rise to damages which are not separate and distinct from
those flowing from an alleged medical malpractice cause of action, it
must be dismissed." Karlin v. IVF America. Inc., 239 A.D.2d 560, 561 (2d
Dep't 1997); accord Luciano v. Levine, 232 A.D.2d 378, 379 (2d Dep't
1996); see also Frangipane v. Dow Corning Corp., 1998 WL 142354, at *4
(S.D.N.Y. Mar. 27, 1998); Rizk v. Cohen, 73 N.Y.2d 98, 105-06 (1989)
(rejecting fraud claims where "plaintiff's allegations do not establish
that [the doctor], acting with knowledge of prior malpractice, made
subsequent misrepresentations in an attempt to conceal his earlier
negligence") (emphasis in original). Dr. Epstein's alleged malpractice
— involving the alleged misstatement as to who would perform the
surgery — is not separate from the fraud being alleged; indeed, the
statement that is alleged to constitute malpractice is the very statement
that is alleged to be fraudulent. Because New York appears to bar any
fraud claim in this situation, the Court must dismiss the fraud
claim in so far as it relates to Dr. Epstein's statements to the Meyers as
to who would perform the surgery.
b. Fraud Regarding the Videotape. Under New York law, a plaintiff
alleging fraud must demonstrate "a misrepresentation or a material
omission of fact which was false and known to be false by defendant, made
for the purpose of inducing the other party to rely upon it, justifiable
reliance of the other party on the misrepresentation or material
omission, and injury." Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413,
421 (1996) (citing cases); see also Bridgestone/Firestone. Inc. v.
Recovery Credit Servs., Inc., 98 F.3d 13, 19 (2d Cir. 1996)
(characterizing the final element as a requirement that plaintiff show he
or she "suffered damage as a result of such reliance").
The Meyers have provided no evidence as to how the failure to disclose
the videotape caused them injury. The Meyers' brief states that this
fraud "hindered [their] ability to find treatment for their daughter,"
Pls. Br. at 10, and that it "took away subsequent treating doctors'
ability to use the videotape to better treat Samara." Id. at 10-11. No
admissible testimony or other evidence is cited in support of these
allegations of injury, however. The statements in the brief are
insufficient to carry the Meyers' burden on this motion for summary
judgment under Fed.R.Civ.P. 56(e), which mandates that a party opposing
summary judgment "may not rest upon the mere allegations or denials" but
must offer competent evidence to show that there is a genuine issue for
trial. Accordingly, Dr. Epstein is entitled to summary judgment on this
aspect of the fraud claim.
c. Fraud as to the Insurance Form. The Meyers offer no basis whatsoever
— either through arguments in their brief or through admissible
evidence — for concluding that this alleged fraud caused them any
injury. Accordingly, it too cannot serve as a basis for a fraud claim.
Summary judgment is granted in favor of the defendants with respect to
the plaintiffs' claims for fraud. It is denied with respect to
plaintiffs' battery and malpractice claims.