| Caruso v Northeast Emergency Med. Assoc., P.C. |
| 2011 NY Slip Op 05598 [85 AD3d 1502] |
| June 30, 2011 |
| Appellate Division, Third Department |
| Thomas P. Caruso et al., Respondents, v NortheastEmergency Medical Associates, P.C., Appellant. |
—[*1] Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondents.
Garry, J. Appeals (1) from an order of the Supreme Court (Reilly, Jr., J.), entered February 1,2010 in Schenectady County, which, among other things, partially granted plaintiffs' crossmotion for a directed verdict, (2) from the judgment entered thereon, and (3) from an order ofsaid court, entered April 29, 2010 in Schenectady County, which denied defendant's motion forreargument.
This indemnification case arises from a medical malpractice action that plaintiff Thomas P.Caruso (hereinafter plaintiff) and his wife, derivatively, commenced against Ellis Hospital andemergency room physician Alex Pasquariello as a result of medical care and treatment thatplaintiff received on the evening of July 27, 2001. Plaintiff had seen his physician earlier in theday who, concerned by plaintiff's complaint of a persistent headache of varying intensityaccompanied by vomiting, directed him to the hospital's emergency room for further evaluation.Plaintiff waited for approximately two hours at the hospital before being seen by Pasquariello,who diagnosed plaintiff with a headache (possibly caused by tension or a migraine), anddischarged him. The next day upon her return from work, plaintiff's wife found her husbandvomiting and unable to walk. He was then taken by ambulance to a different hospital, anddiagnosed with a cerebral hemorrhage. Following emergency surgeries and various complicationsarising therefrom, plaintiff suffered permanent brain injuries and the loss of his [*2]eyesight.
After commencing the medical malpractice action, plaintiffs learned that Pasquariello, anemployee of defendant, rendered treatment to plaintiff pursuant to a contract between defendantand the hospital, whereby defendant would supply physicians to provide medical services in thehospital's emergency room. Plaintiffs settled with Pasquariello for $3 million, the full amountavailable from his insurance policy with Medical Liability Mutual Insurance Company(hereinafter MLMIC). The hospital settled plaintiffs' lawsuit against it[FN1]by paying $1 million in cash and assigning any indemnification rights it had against defendant foran amount up to $1 million. Plaintiffs also executed a general release.[FN2]
Thereafter plaintiffs, as assignees of the hospital, commenced this action against defendantseeking common-law indemnification in the amount of $1 million.[FN3]MLMIC, which was also defendant's insurance carrier, disclaimed coverage, arguing thatplaintiffs waived all claims against defendant when they signed the general release settling thematter against the hospital. Supreme Court, among other things, granted defendant's motion forsummary judgment dismissing the complaint and, on appeal, this Court reversed the grant ofsummary judgment, finding questions of fact as to the parties' intentions with respect to therelease of the indemnification claim (Caruso v Northeast Emergency Med. Assoc., P.C., 54 AD3d 524,529-530 [2008]).
Following a trial, the jury rendered a verdict in defendant's favor on the issue of whethernegligence on the part of the hospital's nursing staff was a proximate cause of plaintiff's injuries,thus defeating the claim for common-law indemnification. Supreme Court had reserved upon andthereafter granted plaintiffs' motion for a directed verdict, setting aside the jury's finding withrespect to the proximate cause issue. Defendant's motion to set aside the verdict was denied, aswas its later motion to reargue. Supreme Court then entered judgment for plaintiffs in the amountof $1 million, plus interest and disbursements. Defendant appeals from the order and judgment inplaintiffs' favor.[FN4][*3]
Initially, defendant contends that Supreme Court erred ingranting plaintiffs' motion for a directed verdict setting aside the jury's finding of proximatecause with respect to the alleged negligence of the hospital's staff. The verdict sheet asked thejury whether, among other things, the "[h]ospital and its nursing staff deviate[d] from anaccepted standard of nursing care during their treatment" of plaintiff and, if so, whether "thatdeviation [was] a proximate cause of [plaintiff's] injuries." The jury answered "Yes" to bothquestions. Defendant seeks to have the jury's finding as to proximate cause reinstated. Thiswould result in dismissal of the action because plaintiffs, as assignees of the hospital, would bebarred from recovering on their indemnification claim if the hospital was found liable throughactive negligence for the underlying claim in any degree (see Cunha v City of New York, 12 NY3d 504, 509 [2009]).
Under CPLR 4401, a directed verdict is "appropriate when, viewing the evidence in a lightmost favorable to the nonmoving party and affording such party the benefit of every inference,there is no rational process by which a jury could find in favor of the nonmovant" (Hytko v Hennessey, 62 AD3d1081, 1083 [2009]). "In a medical malpractice action, establishment of a prima facie caserequires expert testimony that there was a deviation from accepted standards of medical care andthat such deviation was the proximate cause of the injury" (id. at 1083-1084 [citationsomitted]; see Turcsik v Guthrie Clinic,Ltd., 12 AD3d 883, 886 [2004]). Here, proof establishing the nursing staff's negligencewas set forth via the testimony of two experts. Judith Quinn, an emergency department directorcertified in critical care, opined that the hospital's nurses were negligent in that, among otherthings, they improperly placed plaintiff in a waiting room set aside for minor injuries, failed toproperly document plaintiff's condition and complaints, and did not convey to Pasquariello thefact that plaintiff had been referred to the emergency room by his physician. Barabra Salisbury, anurse manager, testified that there was relevant documentation that was not included in plaintiff'striage note. Thus, the record amply supported the jury's finding that the hospital's nurses werenegligent in their care of plaintiff.
However, we agree with Supreme Court that the proof was deficient with respect to whetherthe nursing staff's negligence was a proximate cause of plaintiff's injuries. Neither of the twophysicians who testified for the parties stated that the nursing staff's alleged negligence was acause of plaintiff's injuries. In fact, while defendant argues that the two hours that plaintiff spentin a waiting room before he was seen by Pasquariello must have been a factor, defendant's expertphysician did not render such an opinion and plaintiffs' expert physician, Joseph Carfi, testifiedthat plaintiff's "devastating injuries" were caused by the 24-hour delay that occurred afterplaintiff was discharged from the hospital. While Quinn testified that, in her experience, mostphysicians would have ordered tests such as a CAT scan or an MRI if a patient had been sent tothe emergency room by his or her physician, she also acknowledged that Pasquariello, in his May2003 deposition, stated that his evaluation and diagnosis of plaintiff would not have changedeven if he had been in possession of complete documentation, including the physician referral.Given the absence of expert testimony establishing proximate cause, we conclude that SupremeCourt properly granted plaintiffs' motion for a directed verdict (see Hytko v Hennessey,62 AD3d at 1084).
Next, we find defendant's challenge to Supreme Court's rulings regarding certain subpoenasto be unavailing. We are unpersuaded that the court abused its discretion by declining to quash asubpoena of the MLMIC claim file, as well as subpoenas served on three of MLMIC'semployees, notwithstanding defendant's assertion that the information sought was prepared forlitigation related to the underlying medical malpractice action against the hospital and [*4]Pasquariello, and, therefore, was not subject to disclosure. Theparty claiming that privilege bears the burden of "identifying the particular material with respectto which the privilege is asserted and establishing with specificity that the material was preparedexclusively in anticipation of litigation" (Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; seeClaverack Coop. Ins. Co. v Nielsen, 296 AD2d 789, 790 [2002]; see also CPLR 3101[d] [2]). Here, defendant failed to identify any particular document that was privileged, and theaffidavits of MLMIC employees only made conclusory statements that their work was preparedin anticipation of litigation. Accordingly, we find no basis to disturb Supreme Court's denial ofthe motion to quash (see Bombard v Amica Mut. Ins. Co., 11 AD3d at 648; ClaverackCoop. Ins. Co. v Nielsen, 296 AD2d at 790).
As for defendant's contention that its subpoena seeking the testimony of plaintiffs' counsel toexplain the circumstances surrounding the settlement was improperly quashed, we cannot agreethat Supreme Court abused its discretion. Upon such a motion, it is not enough that the partyissuing the subpoena establish that the disclosure sought is relevant; it must also be shown thatthe information sought cannot be obtained from another source (see Matter of Troy Sand & Gravel Co., Inc.v Town of Nassau, 80 AD3d 199, 203 [2010]). Defendant failed to meet that standard,and we find no basis for reversal (see id.).
Next, defendant contends that the jury's finding that plaintiffs did not intend to releasedefendant from the indemnity rights they obtained by assignment from the hospital was notsupported by legally sufficient evidence and, therefore, its motion to set that finding aside shouldhave been granted. Defendant argues that plaintiffs clearly meant to include the assignedindemnity claim when they executed the general release reciting, among other things, thatdefendant was released from any and all claims by plaintiffs (see 54 AD3d at 526). Attrial, plaintiffs presented the release, the stipulation of settlement, and the testimony of anattorney who represented the hospital in the underlying medical malpractice action. This witnesstestified that, at the time of the settlement, it was his understanding that the hospital wasassigning its indemnification claim against defendant to plaintiffs and there was no intention thatthis release would "waive or extinguish any rights to receive an assignment from Ellis Hospital oftheir rights of indemnification." This and other proof, when viewed in the light most favorable toplaintiffs, was legally sufficient to support the jury's finding that plaintiffs did not intend torelease defendant from the indemnification claim (see Cramer v Benedictine Hosp., 301AD2d 924, 929 [2003]). Moreover, the jury's finding is not against the weight of the evidence (see Wolfe v St. Clare's Hosp. ofSchenectady, 57 AD3d 1124, 1126 [2008]).[FN5]
Next, defendant argues that its motion to set aside the jury's finding that it had sufficientnotice of the hospital's settlement should have been granted. Notably, where it is shown that anindemnitor "receive[d] notice of the claim against the indemnitee, . . . the general[*5]rule is that the indemnitor will be bound by any reasonablegood faith settlement the indemnitee might thereafter make" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 74 AD3d32, 39 [2010] [internal quotation marks and citation omitted]). Here, the depositiontestimony of two of defendant's owners, together with trial testimony from the hospital's counsel,provided proof that defendant had timely notice of plaintiff's injuries and the lawsuit commencedagainst Pasquariello and the hospital, as well as the hospital's settlement proposal to assign thehospital's indemnification claim to plaintiffs. Accordingly, the jury's finding that defendant hadnotice of the claim was supported by legally sufficient evidence, and was not against the weightof the evidence (see generally Wolfe v St. Clare's Hosp. of Schenectady, 57 AD3d at1126).
As assignees of the hospital, plaintiffs bore the obligation to prove that the hospital'ssettlement of the case was done in good faith and for a reasonable amount (see DeutscheBank Trust Co. of Ams. v Tri-Links Inv. Trust, 74 AD3d at 39). To that end, plaintiffsoffered expert medical proof at trial establishing the extent of plaintiff's permanent brain injuriescaused by the intraventricular hemorrhage, as well as his blindness. Proof by other expertsdescribed how plaintiff will require in-home medical care for the rest of his life. Estimates as tothe approximate cost of that care were also provided. Moreover, the attorney who represented thehospital during settlement negotiations testified that, in his view, it was in the hospital's bestinterest to settle this case after considering the possible damages following a jury trial. We findthat this constituted legally sufficient evidence to support the jury's conclusion that the hospital'ssettlement of this case was reasonable and done in good faith and, further, that the verdict wasnot against the weight of the evidence (see Acunto v Conklin, 285 AD2d 712, 713-714[2001]; see also Garrison v Lapine,72 AD3d 1441, 1443-1444 [2010]).[FN6]
Defendant's remaining contentions, including its challenge to the jury instructions andassertion that cumulative errors on the part of Supreme Court warrant a new trial, have beenexamined and found to be unpersuasive.
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order enteredFebruary 1, 2010 and the judgment are affirmed, with costs. Ordered that the appeal from theApril 29, 2010 order is dismissed.
Footnote 1: Prior to the settlement,plaintiffs' claims against the hospital other than those premised upon vicarious liability weredismissed by Supreme Court.
Footnote 2: It was agreed as part of thesettlement that the total sum of plaintiffs' losses was $5 million. The specific terms andconditions of the stipulation are set forth in the decision rendered upon the parties' priorinterlocutory appeal to this Court (Caruso v Northeast Emergency Med. Assoc., P.C., 54 AD3d 524,526-529 [2008]).
Footnote 3: Although the record reveals thatthere was some confusion as to whether contractual indemnification was also involved, it wasclarified at trial that plaintiffs' claim sounded only in common-law indemnification.
Footnote 4: Defendant also appealed fromthe denial of its motion for reargument, but, as no appeal lies from a denial of such a motion,defendant's appeal from that order must be dismissed (see Matter of Sital v Fischer, 76 AD3d 723, 724 n [2010]).
Footnote 5: We are also unpersuaded that averdict should have been directed in defendant's favor based upon certain remarks made byplaintiffs' counsel in his opening statement, that defendant labels an admission. The remarkscould be interpreted in different ways and, even viewing them in defendant's favor, they are notso self-defeating as to be characterized as an admission warranting a directed verdict (see DeVito v Katsch, 157 AD2d 413, 416 [1990]).
Footnote 6: Defendant also challenges thejury's finding that Pasquariello deviated from an accepted standard of care and this was aproximate cause of plaintiff's injuries. It is unnecessary to consider this argument, as plaintiffswould only be required to prove the underlying liability of defendant's employee if it wasdetermined that the hospital had not provided appropriate notice (see Deutsche Bank TrustCo. of Ams. v Tri-Links Inv. Trust, 74 AD3d at 39).