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Excessive Intervention and Improper Conduct by Trial Judge Required New Trial

In a medical malpractice case, the Second Department determined plaintiff was deprived of a fair trial by the trial judge’s excessive intervention and improper conduct:

“[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” . A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” … . Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance'” … . Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial===and often times in the presence of the jury—unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. Porcelli v Northern Westchester Hosp Ctr, 2013 NY Slip Op 06354, 2nd Dept 10-2-13

 

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Excessive Intervention by Trial Judge Required New Trial

Over a partial dissent, the Second Department granted defendant a new trial before a different justice in a medical malpractice case based upon the trial judge’s erroneous exclusion of evidence, excessive intervention in the trial, and an erroneous (“Noseworthy”) jury instruction. With respect to the judicial intervention, the Second Department wrote:

The defendant was … deprived of a fair trial by the court’s excessive intrusion into the examination of witnesses, and by the nature and extent of its questioning and comments … . It is axiomatic that the trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nonetheless, a trial court must be “mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner” … . Here, while the trial court had the authority to elicit and clarify the defense witnesses’ testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed an impression of incredulity with respect to the defense witnesses’ opinions, as reflected by the record … . Moreover, the court’s incredulity had an improper cumulative effect … . Nunez v New York City Health & Hosps Corp…, 2013 NY Slip Op 06350, 2nd Dept 10-2-13

 

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Fraud and Breach of Fiduciary Causes of Action Dismissed as Duplicative

The Fourth Department dismissed as duplicative causes of action sounding in fraud and breach of fiduciary duty in complaints against dentists also alleging malpractice, negligence, breach of General Business Law section 349 and 350, and failure to obtain informed consent, all based on dental treatment provided to children:

We agree with defendants that the court erred in denying those parts of their respective motions seeking dismissal of the fraud and breach of fiduciary duty causes of action, and we therefore modify the order by dismissing the first and third causes of action of the amended complaints against defendants.  “Dismissal of a fraud cause of action is required ‘[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged [dental] malpractice cause of action’ ” … .  Inasmuch as the damages sought by plaintiffs, including punitive damages, are the same for the fraud and dental malpractice causes of action, we conclude that the fraud cause of action must be dismissed.  We further conclude that the breach of fiduciary duty cause of action must be dismissed because it is duplicative of the malpractice cause of action … .  Both the breach of fiduciary duty cause of action and dental malpractice cause of action are based on the same facts and seek identical relief… . Matter of Small Smiles Litigation … v Forba Holdings LLC…, 996, 4th Dept 9-27-13

 

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Question of Fact Raised by Competing Expert Affidavits

The Fourth Department determined competing experts raised a question of fact about whether the post-discharge arrangements for psychiatric treatment of plaintiff’s decedent were adequate.  Plaintiff’s decedent committed suicide 16 days after he was released from defendant psychiatrist’s in-patient care:

…[P]laintiff submitted the affidavit of her unidentified expert, wherein the expert stated that the proper standard of care required that decedent, who had been prescribed multiple medications that had significant side effects, such as suicidal ideation, “be monitored closely by a psychiatrist from the point of his discharge.” It is undisputed that defendant approved the discharge without ensuring that decedent had a psychiatrist who could treat him. Additionally, defendant acknowledged at her deposition that decedent required psychiatric care upon discharge, but testified that it was not her responsibility to arrange for decedent’s post-discharge care and that this responsibility was “customarily [within] the purview of the social worker.”  Similarly, defendant’s expert stated in his affidavit that it was within the standard of care to delegate to a licensed social worker the task of arranging for post-discharge care. Plaintiff’s expert, however, disagreed, stating that “delegating the task to a social worker without insuring that the task was completed is a . . . deviation from the standard of care.”  We conclude that the conflicting opinions of the experts raise an issue of fact for trial… .  Mazella… v Beals…and Mashinik, 931, 4th Dept 9-27-13

 

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Refusal to Comply with Discovery Demand Supported Sanction of Dismissal of the Complaint

The Second Department determined Supreme Court had properly dismissed the complaint in a medical malpractice action because the plaintiffs refused to identify the mohel who had performed the circumcision of infant plaintiff.  In finding dismissal of the entire complaint an appropriate sanction, the court wrote:

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure including the nature and degree of the penalty to be imposed under CPLR 3126” … . “The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful or contumacious”… . Further, the court can infer that a party is acting willfully and contumaciously through his or her repeated failure to respond to demands or to comply with discovery orders … .  Silberstein v Maimonides Med Ctr, 2013 NY Slip Op 05813, 2nd Dept 9-11-13

 

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Gaps in Treatment Precluded “Continuous Treatment Doctrine” in Medical Malpractice Suit—Action Time-Barred

The Second Department reversed Supreme Court and granted summary judgment to the defendant in a medical malpractice action finding the action was time-barred because the continuous treatment doctrine did not apply:

Although the plaintiffs contend that the statute of limitations was tolled by the continuous treatment doctrine, they failed to raise a triable issue of fact in that regard … . The plaintiffs’ decedent received treatment from the defendant over a 17-year period for recurrent bladder tumors. After his initial diagnosis, in 1991, the decedent typically returned for treatment only when he was symptomatic, experiencing hematuria. Thus, between December 1999 and April 2003, and again, from December 2004 until October 2007, the decedent did not visit with the defendant. As a result of these temporal gaps, because the decedent did not continue to seek a course of treatment, any continuity in treatment that had existed was severed … . Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of medical malpractice and lack of informed consent committed prior to December 22, 2006… . Peykarian v Yin Chu Chien, 2013 NY slip Op 05809, 2nd Dept 9-11-13

 

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Failure to Appeal Dismissal of Underlying Medical Malpractice Action Did Not Preclude Related Legal Malpractice Action

The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, and therefore had to be named individually as a defendant. The action against the physician was dismissed as time-barred. The dissent argued “if plaintiff had been successful in his appeal of the underlying federal action, we would not have a subsequent legal malpractice case.”  In holding that the failure to appeal the federal ruling did not preclude the legal malpractice action, the Fourth Department distinguished a prior case, Rupert v Gates and Adams, PC, 83 AD3d 1383, relied upon by the defendants:

We reject defendants’ invitation to extend the ruling in Rupert to a per se rule that a party who voluntarily discontinues an underlying action and forgoes an appeal thereby abandons his or her right to pursue a claim for legal malpractice. …

Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein… .  … [S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system ….  The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim ….  Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages… .  Grace v Law, et al, 625, 4th Dept 7-19-13

 

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Fact that Medical Guidelines May Be Available to the Public Does Not Warrant Denial of Discovery of Such Documents from the Defendant

The Fourth Department determined Supreme Court had erred in denying certain of plaintiff’s discovery demands in a medical malpractice case alleging injuries sustained by infant plaintiff during birth.  The materials deemed material and necessary (and not unduly burdensome to produce) included: standards for fetal monitoring and pediatric advancement of life support; a protocol entitled “Circulating Vaginal Delivery;” interpretation and management of fetal heart rate patterns; and specified guidelines and standards published by medical associations.  The Fourth Department noted that the fact that standards and guidelines may be available to the public is not a ground for denying discovery.  The court explained the discovery criteria generally as follows:

…[W]e note that CPLR 3101 requires “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]).  The phrase “ ‘material and necessary should be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ”… .  “Entitlement to discovery of matter satisfying the threshold requirement is, however, tempered by the trial court’s authority to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome . . . and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”  (…see CPLR 3103 [a]).  In opposing a motion to compel discovery, a party must “establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (…see generally CPLR 3103 [a]).  Rawlins…v St Joseph’s Hospital Health Center…, 659, 4th Dept 7-19-13

 

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Supreme Court’s Setting Aside Jury Verdict Reversed; Use of Juror-Affidavits to Correct Mistake in Verdict Okay

In a medical malpractice case, the Fourth Department reversed Supreme Court’s setting aside the jury verdict which found the negligence of one defendant (Caputo) was not a substantial factor in causing plaintiff’s injuries. In addition, over a dissent, the Fourth Department found the use of juror affidavits to correct a mistake in the verdict was proper.  The Fourth Department wrote:

“A verdict finding that a defendant was negligent but that such negligence was not a proximate cause of the [plaintiff’s injuries] is against the weight of the evidence only when [those] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause”….  “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .  Here, plaintiffs alleged four different theories of negligence against Dr. Caputo, and we conclude that there is a reasonable view of the evidence to support a finding that Dr. Caputo was negligent in failing to provide [the] resident staff with adequate information concerning the operative procedure and plaintiff’s postoperative care, but that such failures were not the proximate cause of plaintiff’s injuries… .

…[T]he court properly granted plaintiffs’ “supplemental motion” to correct the verdict with respect to the award of damages for plaintiff’s future pain and suffering.  In support of the “supplemental motion,” plaintiffs submitted affidavits from all six jurors, who averred that they understood and agreed that plaintiff would receive $60,000 per year for a period of 30 years, not a total of $60,000 over the course of that period….  We acknowledge that “public policy concerns disfavor the use of juror affidavits for posttrial impeachment of a verdict” … .  Here, however, “[t]he information afforded by the affidavits of the jurors is not to impeach, but to support the verdict really given by them”… .  Butterfield v Caputo, et a;l, 602, 4th Dept 7-19-13

 

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Expert’s Affidavit Too Speculative to Raise Question of Fact About Proximate Cause

In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury:

The expert contends that, if that CT scan had been performed on February 16, 2004, “then diagnosis of [decedent]’s aortic dissection . . . would, more probably than not, have been made.”  Significantly, however, the medical records indicate that it was a CT scan of decedent’s head and chest, not a scan of his pelvis and abdomen, that revealed an aortic dissection on March 1, 2004.  Thus, the opinion of plaintiff’s expert that an abdominal and pelvic CT scan performed on February 16, 2004 would more likely than not have revealed an aortic dissection is speculative.  Wilk … v James, et al, 401, 4th Dept 7-19-13

 

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