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MALPRACTICE TREATING THE INITIAL MEDICAL INJURY AT ANOTHER HOSPITAL IS A FORESEEABLE CONSEQUENCE OF THE INITIAL MEDICAL INJURY (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating the medical malpractice action, noted that malpractice in treating an injury is a foreseeable consequence of the injury. Plaintiff’s decedent was injured during surgery and the injury was subsequently treated at another hospital (The Valley Hospital). Defendants’ expert opined that a delay in treatment at The Valley Hospital was the cause of decedent’s injuries:

Although defendants’ expert opined that the cause of decedent’s injuries was negligent delay by The Valley Hospital, any such delay “does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury” … . Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort … . Therefore, regarding these injuries, defendants’ expert “never actually opined that [decedent’s] claimed injuries were not causally related to defendants’ alleged malpractice” … . Murphy v Chinatown Cardiology, P.C., 2023 NY Slip Op 05321, First Dept 10-19-23

Practice Point: If the initial medical injury leads to subsequent treatment at another hospital, any malpractice in the subsequent treatment is a foreseeable consequence of the initial medical injury.

 

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FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived defendant of the right to present a defense. The complainant alleged defendant inserted his finger in her vagina and fondled her breasts. A forensic analysis of a vaginal swab and complainant’s underwear revealed the presence of complainant’s saliva and fluids from two unidentified males:

… [T]he legislature enumerated five exceptions to CPL 60.42’s [the Rape Shield Law’s] evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 81 NY2d at 311). “The exceptions . . . recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses” … .

Defendant argues that the forensic evidence was admissible under several of the exceptions set forth in CPL 60.42. We need not address every basis raised because we conclude that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice” (CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning . . . is to summarize the substance or content of the evidence” … . In his motion in limine, defense counsel delineated the findings contained in the forensic reports and explained how they constituted “evidence of something other than . . . defendant having engaged in inappropriate and unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under Williams (81 NY2d at 314). People v Cerda, 2023 NY Slip Op 05305, CtApp 10-19-23

Practice Point: Here the interest-of-justice exception to the Rape Shield Law applied. The majority found that the exclusion of forensic evidence of complainant’s sexual activity (which did not implicate the defendant) violated defendant’s right to put on a defense.

 

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EXPERT EVIDENCE ABOUT THE EFFECT OF A DRUG MIXED WITH ALCOHOL ON DEFENDANT’S ABILITY TO FORM THE INTENT TO COMMIT MURDER AND ASSAULT SHOULD HAVE BEEN ADMITTED; DEFENDANT SHOULD HAVE BEEN ALLOWED TO LAY A FOUNDATION TO QUALIFY AN EMAIL WHICH INCLUDED HEARSAY AS A BUSINESS RECORD; NEW TRIAL ORDERED.

The Third Department, reversing defendant’s attempted murder and assault convictions, determined expert testimony explaining the effects of a drug taken by the defendant along with alcohol should have been admitted. In addition, an email in which a police officer, who was not at the scene, referred to the defendant’s condition as “highly intoxicated” should not have been excluded as hearsay. If the document had been qualified as a business record, it would have been admissible. The defendant should have been given an opportunity to establish a foundation for the admissibility of the email:

As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” … . The criteria to be used is “whether the proffered expert testimony ‘would aid a lay jury in reaching a verdict’ ” … , however, and the testimony proffered here regarding the effect of combined clonazepam and alcohol use would undoubtedly be useful to a lay jury in assessing “the ability of a defendant to form the intent to commit a crime following drug and alcohol consumption” … . As the Court of Appeals explained when presented with a comparable situation, while “jurors might be familiar with the effects of alcohol on one’s mental state, the combined impact of” alcohol and other drugs “on a person’s ability to act purposefully cannot be said as a matter of law to be within the ken of the typical juror” … . * * *

County Court erred in refusing to allow defendant to question the author of the preliminary investigation report describing defendant as “highly intoxicated” and then declining to admit the document into evidence on hearsay grounds because its author was not present on the night of the incident. Defendant must be afforded an opportunity to establish the proper foundation to qualify the email as a business record within the meaning of CPLR 4518 and, if defendant is successful in that effort, the fact that its author lacked personal knowledge of defendant’s intoxication goes to the weight, not the admissibility, of the statements therein … . People v Mawhiney, 2023 NY Slip Op 05289, Third Dept 10-19-23

Practice Point: Where an issue is beyond the ken of an average juror, here the effect of a drug and alcohol combination on the defendant’s ability to form intent, expert testimony should be admitted.

Practice Point: Here an email by a police officer who was not at the scene of the shooting referred to the defendant as “highly intoxicated.” Although the statement is hearsay, the email may be admissible if it is demonstrated to be a business record.

 

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THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit raised a question of fact whether defendants’ failure to diagnose plaintiff’s decedent’s atherosclerotic cardiovascular disease proximately caused decedent’s premature death:

… Supreme Court properly determined that the affirmation of the defendants’ expert established, prima facie, that the treatment provided by the defendants was not a proximate cause of the decedent’s alleged injuries … . However, … the affirmation of the plaintiff’s expert, wherein the expert opined to a reasonable degree of medical certainty that the defendants’ departures from accepted standards of medical care proximately caused the decedent to die prematurely … , as a result of atherosclerotic cardiovascular disease, was sufficient to raise an issue of fact with respect to causation … . Persuad v Hassan, 2023 NY Slip Op 05279, Second Dept 10-18-23

Practice Point: Here plaintiff alleged defendants’ failure to diagnose decedent’s atherosclerotic cardiovascular disease constituted medical malpractice. Plaintiff’s expert raised a question of fact on causation by asserting the failure to diagnose the disease proximately caused decedent’s premature death.

 

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PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED PURSUANT TO THE ADVOCATE-WITNESS RULE, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s (Gamez’s) counsel should not have been disqualified pursuant to the advocate-witness rule:

“[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion” … . A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party … . “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … . Here, Lopez [defendant] failed to demonstrate that any anticipated testimony by Gamez’s counsel would be necessary to Lopez’s case and that such testimony would be prejudicial to Gamez … . Gamez v Lopez, 2023 NY Slip Op 05250, Second Dept 10-18-23

Practice Point: The criteria for the disqualification of counsel pursuant to the advocate-witness rule were not met here. The testimony of the opposing party’s counsel must be necessary to the moving party’s case, and the testimony must be prejudicial to the opposing party.

 

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IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE FAMILIARITY WITH THE APPLICABLE STANDARD OF CARE, WAS SPECULATIVE AND CONCLUSORY AND DID NOT ADDRESS ALL THE ASSERTIONS MADE BY DEFENDANTS’ EXPERTS; THE DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit from plaintiff’s expert did not demonstrate familiarity with the applicable standard of care, was speculative and conclusory, and did not address all the allegations raised by defendants’ experts:

… [T]he plaintiff failed to raise a triable issue of fact by submitting a redacted physician’s affidavit. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge[,] or experience” necessary to establish the reliability of his or her opinion …  Here, the redacted physician’s affidavit failed to lay the requisite foundation for the affiant’s familiarity with the applicable standard of nursing care … . Moreover, the opinions of the plaintiff’s expert that the defendants deviated from the applicable standard of care were speculative, conclusory, and nonresponsive to the specific assertions raised by the defendants’ experts … . Blank v Adiyody, 2023 NY Slip Op 05243, Second Dept 10-18-23

Practice Point: In a med mal action, in the context of a summary judgment motion, an expert’s affidavit must demonstrate familiarity with the applicable standard of care, must not be speculative or conclusory, and must address all the assertions made by the opposing party’s expert(s).

 

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THE MAJORITY CONCLUDED THE ARGUMENT THAT DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO READ THE INDICTMENT TO THE JURY TO SHOW THE DISCREPANCY BETWEEN THE ALLEGATIONS OF COERCION IN THE INDICTMENT AND THE PROOF AT TRIAL WAS RENDERED MOOT BY THE DISMISSAL OF THE COERCION COUNT; THE DISSENT ARGUED THE PROHIBITION DEPRIVED DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE (THIRD DEPT).

The Third Department, over a partial dissent, determined defense counsel was properly prohibited from reading the indictment to the jury. Defense counsel sought to show that the allegations of coercion in the indictment differed from the proof presented by the People. Both the majority and the dissenter agreed that the proof of coercion was legally insufficient. Therefore the majority held defendant’s argument he should have been allowed to read the indictment to the jury was rendered moot. The dissent argued the prohibition deprived defendant of his right to present a defense:

In light of our conclusion, defendant’s contention that County Court erred in declining to charge the jury with certain lesser included offenses of coercion in the first degree has been rendered moot. The same is true with respect to defendant’s assertion that he was improperly prevented from reading the indictment to the jury during his opening statement and closing argument. That is, as limited by his appellate brief, the only particular claim articulated by defendant concerning this issue is that he should have been allowed to highlight for the jury the discrepancy between the allegation listed in the indictment relative to the coercion count and the proof expected to be presented or actually presented at trial, which is the very basis upon which that count has now been dismissed. 

From the dissent:

… [D]efendant’s trial strategy hinged on showing that the People had not proven the factual allegations in the indictment, and that County Court stymied that strategy by repeatedly refusing to allow defense counsel to read the indictment to the jury. County Court’s refusal to allow defense counsel to read the indictment to the jury in his opening statement violated defendant’s statutory right to “present[ ] his view of the case” in an opening statement that highlighted what he believed would be weaknesses in the People’s proof … . People v Knapp, 2023 NY Slip Op 05168, Third Dept 10-12-23

Practice Point: Defense counsel wanted to read the indictment to the jury to show the discrepancy between the allegations of coercion and the proof presented at trial. County Court ruled defense counsel could not read the indictment to the jury. The majority held the issue was moot because the coercion count was dismissed because the evidence was deemed legally insufficient. The dissent argued the prohibition deprived defendant of his right to put on a defense.

 

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THE MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE, NO NEED TO DEMONSTRATE A REASONABLE EXCUSE; THE LOAN AGREEMENT WAS CRIMINALLY USURIOUS; THE MOTION TO DISIMISS BASED ON DOCUMENTARY EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the default judgment should have been vacated in the interest of justice and the complaint dismissed based on documentary evidence. The loan which was the basis of the action was criminally usurious:

“CPLR 5015(a) ‘does not provide an exhaustive list as to when a default judgment may be vacated'” … . “In addition to the grounds set forth in section 5015(a), a court may vacate a default ‘for sufficient reason and in the interests of substantial justice'” … . “[A] party is not necessarily required to establish a reasonable excuse in order to be entitled to vacatur in the interest of justice” … . * * *

The plaintiff does not dispute that the agreement effected an annual interest rate exceeding the criminally usurious threshold of 25% (see Penal Law § 190.40).

… “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Here, … the defendants conclusively established through the submission of the agreement that it constituted a criminally usurious loan … . Crystal Springs Capital, Inc. v Big Thicket Coin, LLC, 2023 NY Slip Op 05121, Second Dept 10-11-23

Practice Point: A motion to vacate a default in the interest of justice does not require a reasonable excuse.

Practice Point: The usurious loan agreement justified dismissal based on documentary evidence.

 

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THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF DID NOT IDENTIFY THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this slip and fall case was entitled to summary judgment because plaintiff, the administrator of plaintiff’s decedent’s estate, could not identify the cause of plaintiff’s decedent’s fall. Plaintiff’s decedent died from a brain injury incurred by the fall in a bathroom. Although the complaint alleged the floor was wet and slippery, that allegation was not supported by any of the circumstantial evidence. Plaintiff’s decedent said he had lost his balance:

Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party … , the defendants demonstrated, prima facie, that the plaintiff was unable to identify the cause of the decedent’s accident without engaging in speculation, since the evidence demonstrated that the plaintiff was unable to identify how the decedent’s accident occurred or what dangerous condition or defect, if any, in the men’s bathroom caused the decedent’s fall … . In opposition, the plaintiff failed to raise a triable issue of fact. Cruz v Flatlands Christian Ctr., Inc., 2023 NY Slip Op 05120, Second Dept 10-11-23

Practice Point: If the cause of a slip and fall cannot be identified without speculation, the action will be dismissed.

 

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IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO REOPEN THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff’s motion to reopen the inquest on damages. Although the motion was untimely, there was no prejudice to the defendants:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, to reopen the inquest in order to permit the plaintiff to submit what the court had indicated was crucial evidence … . Moreover, there was no evidence that the defendants would be prejudiced … . Although the plaintiff’s motion was not made in a timely fashion, a factor which ordinarily weighs against granting such relief … , the record here reflects that the delay may have been due in part to the plaintiff’s confusion regarding the court’s directive as to how to proceed … . Commonwealth Land Title Ins. Co. v Islam, 2023 NY Slip Op 05119, Second Dept 10-11-23

Practice Point: Here plaintiff sought to reopen the inquest on damages to present crucial evidence which had been requested by the judge. Although the request was untimely, there was no prejudice to the defendants. It was an abuse of discretion to deny the motion.

 

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