| Wild v Catholic Health Sys. |
| 2011 NY Slip Op 05337 [85 AD3d 1715] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| Marcia A. Wild et al., Respondents, v Catholic Health System,Doing Business as Mercy Hospital of Buffalo, et al., Defendants, and Buffalo EmergencyAssociates, LLP, et al., Appellants |
—[*1] Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), forplaintiffs-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Tracey A. Bannister, J.),entered April 6, 2010 in a medical malpractice action. The judgment awarded plaintiffs moneydamages against defendants Buffalo Emergency Associates, LLP and Raquel Martin, D.O.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby granting that part of the post-trial motion to set aside the verdict and for a new trial withrespect to the award of damages for loss of consortium only, and as modified the judgment isaffirmed without costs and a new trial is granted on that element of damages only unlessplaintiffs, within 20 days of service of a copy of the order of this Court with notice of entry,stipulate to reduce the award of damages for loss of consortium to $200,000, in which event thejudgment is modified accordingly and as modified the judgment is affirmed without costs.
Memorandum: Marguerite Horn (decedent) was treated at defendant Catholic Health System,doing business as Mercy Hospital of Buffalo (Mercy Hospital), after her husband, plaintiffJoseph Horn, discovered that she was unresponsive. Although decedent regained consciousness,she again became unresponsive when she suffered a seizure while at Mercy Hospital. Afterdecedent developed respiratory problems, defendant Raquel Martin, D.O., the emergency roomphysician treating decedent, concluded that decedent needed to be intubated. Following twounsuccessful attempts by Dr. Martin to place an endotracheal tube in decedent's throat, Dr.Martin directed at least two other persons to attempt to place the tube. When those attemptsfailed, an anesthesiologist was summoned, and he successfully intubated decedent. At some pointduring the intubation procedure, Dr. Martin and others observed a subcutaneous emphysemaunder decedent's skin, but it was not until several days later that physicians discovered thatdecedent's esophagus had been perforated during the intubation procedure. The perforation couldnot be repaired, and a feeding tube therefore was inserted into decedent's stomach. As a result,decedent was never again able to consume solid foods or liquids normally.[*2]
Decedent and her husband commenced this medicalmalpractice action against multiple defendants seeking damages for the perforated esophagus andthe injuries related thereto. Following decedent's death from causes unrelated to the allegedmalpractice, plaintiffs Marcia A. Wild and Thomas F. Horn were substituted as plaintiffs in theircapacity as co-executors of decedent's estate. The matter proceeded to trial and the jury, havingfound that only Dr. Martin was negligent, awarded $500,000 for decedent's pain and sufferingand $500,000 for her husband's derivative cause of action.
We reject the contention of Dr. Martin and her partnership, defendant Buffalo EmergencyAssociates, LLP (collectively, defendants), that Supreme Court exhibited bias in favor ofplaintiffs or abused its "broad authority to control the courtroom, rule on the admission ofevidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel andwitnesses when necessary" (Carlson v Porter [appeal No. 2], 53 AD3d 1129, 1132[2008], lv denied 11 NY3d 708 [2008] [internal quotation marks omitted]). We agreewith defendants, however, that the court erred in permitting plaintiffs to attempt to impeachdefendants' expert during plaintiffs' cross-examination of that expert by playing an instructionalDVD that he had helped to edit and finance, inasmuch as the expert testified that he did notaccept the DVD as authoritative (see Winiarski v Harris [appeal No. 2], 78 AD3d 1556,1557-1558 [2010]). Under the circumstances of this case, however, we conclude that the errordoes not warrant reversal (see id.).
Defendants further contend that the court erred in charging the jury with respect to proximatecause and, although we agree, we conclude that the error is harmless. The claims againstdefendants fell into two categories. The first category was that Dr. Martin was negligent duringthe intubation procedure, thereby causing the perforated esophagus (commission theories), andthe second category was that she failed to chart or to follow up on the perforation, therebycausing a delay in the diagnosis of the perforation and depriving decedent of some possibility thatthe perforation could be repaired and the feeding tube avoided (omission theories). The claimsagainst the other defendants were all based on their failure to diagnose and to treat the perforatedesophagus.
In instructing the jury on causation, the court used only the loss of chance instruction (seegenerally 1B NY PJI3d 2:150, at 846-848 [2011]; Jump v Facelle, 275 AD2d 345,346 [2000], lv dismissed 95 NY2d 931 [2000], lv denied 98 NY2d 612 [2002];Cannizzo v Wijeyasekaran, 259 AD2d 960, 961 [1999]). As defendants correctlyconceded at oral argument of this appeal, that instruction was entirely appropriate for theomission theories (see e.g. Goldberg vHorowitz, 73 AD3d 691, 694 [2010]; Flaherty v Fromberg, 46 AD3d 743, 745-746 [2007];Jump, 275 AD2d at 346; Stewart v New York City Health & Hosps. Corp., 207AD2d 703, 704 [1994], lv denied 85 NY2d 809 [1995]; cf. Cannizzo, 259 AD2dat 961). We agree with defendants, however, that it was not an appropriate instruction for thecommission theories. With respect to those theories, the issue was whether the negligent act wasa substantial factor in bringing about the injury, i.e., the perforated esophagus. The standardcharge on proximate cause found in PJI 2:70 conveys the proper legal standard for thecommission theories of negligence and should have been given (see 1B NY PJI 2:150,Comment, at 816).
Under the circumstances of this case, the error in the jury charge on proximate cause does notwarrant reversal. Pursuant to CPLR 2002, "[a]n error in a ruling of the court shall be disregardedif a substantial right of a party is not prejudiced" (see e.g. Stalikas v United Materials,306 AD2d 810, 811 [2003], affd 100 NY2d 626 [2003]; Murdoch v Niagara Falls BridgeCommn., 81 AD3d 1456, 1457-1458 [2011], lv denied 17 NY3d702 [2011]; cf. Gagliardo v Jamaica Hosp., 288 AD2d179, 180 [2001]). Here, no substantial right of defendants was prejudiced. Even if the court hadgiven the correct charge on causation for the commission theories, we conclude that the resultwould have been the same. Under the commission theories, "a finding of negligence necessarilyentailed a finding of proximate cause" inasmuch as it is undisputed that decedent's [*3]esophagus was perforated during the intubation procedure(Young v Gould, 298 AD2d 287, 288 [2002]; see Ahr v Karolewski, 32 AD3d 805, 806-807 [2006]; Brenon vTops Mkts. [appeal No. 2], 289 AD2d 1034, 1034-1035 [2001], lv denied 98 NY2d605 [2002]; Stanton v Gasport View Dairy Farm, 244 AD2d 893, 894 [1997]). Thus, ifthe jury found that defendant was negligent based on one or more of the omission theories, thenthe instruction was proper and there was no error. On the other hand, if the jury found thatdefendant was negligent based on one or more of the commission theories, then the error in thecharge is harmless.
Even assuming, arguendo, that the error insofar as it concerned the commission theories isnot harmless, we nevertheless would not reverse the judgment based on that error. Althoughdefendants' attorney conceded at oral argument of this appeal that the instruction on causationwas proper for the omission theories, he contended that reversal was nevertheless requiredbecause the jury returned only a general verdict, and it therefore was unclear whether the verdictwas based on the omission or commission theories. We agree with defendants that reversalgenerally is required when a general verdict sheet has been used and there is an error affectingonly one theory of liability. Under those circumstances, appellate courts are forced to engage inspeculation to determine whether the error affected the jury's verdict (see generally Davis vCaldwell, 54 NY2d 176, 179-180 [1981]; Cohen v Interlaken Owners, 275 AD2d235, 237 [2000]; Hanratty v City of New York, 132 AD2d 596 [1987]; Jasinski vNew York Cent. R.R., 21 AD2d 456, 462-463 [1964]). Here, however, reversal is notrequired because defendants, as the parties asserting an error resulting from the use of the generalverdict sheet, failed to request a special verdict sheet or to object to the use of the general verdictsheet (see Suria v Shiffman, 67 NY2d 87, 96-97 [1986], rearg denied 67 NY2d918 [1986]; Kahl v Loffredo, 221 AD2d 679, 679-680 [1995]). Thus, we agree with thecontention of plaintiffs' attorney at oral argument of this appeal that defendants may not now relyon the use of the general verdict sheet as a basis for reversal.
Finally, we agree with defendants that the award of $500,000 to decedent's husband for lossof consortium deviates materially from what would be reasonable compensation (seeCPLR 5501 [c]). Based on the evidence presented at trial, we conclude that an award of $200,000is the maximum amount that the jury could have awarded. We therefore modify the judgmentaccordingly, and we grant a new trial on damages for loss of consortium only, unless plaintiffs,within 20 days of service of a copy of the order of this Court with notice of entry, stipulate toreduce that award to $200,000, in which event the judgment is modified accordingly.Present—Scudder, P.J., Smith, Carni, Sconiers and Green, JJ.