| Porcelli v Northern Westchester Hosp. Ctr. |
| 2013 NY Slip Op 03467 [106 AD3d 888] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Teresa Porcelli, Appellant, v Northern WestchesterHospital Center et al., Respondents, et al., Defendants. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forrespondent Northern Westchester Hospital Center. VoutÉ, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Joan S.Levin of counsel), for respondent Melissa Tsai.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffappeals from (1) a judgment of the Supreme Court, Westchester County (Smith, J.),entered November 29, 2011, which, upon a jury verdict in favor of the defendant MelissaTsai and against her on the issue of liability, is in favor of that defendant and against herdismissing the complaint insofar as asserted against that defendant, and (2) a judgment ofthe same court entered January 30, 2012, which, upon the granting of the motion of thedefendant Northern Westchester Hospital Center pursuant to CPLR 4401 for judgment asa matter of law dismissing the cause of action asserted against that defendant allegingthat it is directly liable to the plaintiff in connection with its alleged policy of intubationof certain newborn infants, made at the close of the plaintiff's evidence, and upon thejury verdict, is in favor of that defendant and against her, in effect, dismissing the causesof action asserted against that defendant alleging that it is directly liable to the plaintiff inconnection with its alleged policy of intubation of certain newborn infants and that it isvicariously liable for the tortious conduct of the defendant Melissa Tsai.
Ordered that the judgment entered November 29, 2011, is reversed, on the law, andthe matter is remitted to the Supreme Court, Westchester County, for a new trial on theissue of liability against the defendant Melissa Tsai before a different Justice, a trial onthe issue of damages, if warranted, and the entry of an appropriate amended judgmentthereafter; and it is further,
Ordered that the judgment entered January 30, 2012, is modified, on the law, bydeleting the provision thereof in favor of the defendant Northern Westchester HospitalCenter and against the plaintiff, in effect, dismissing the cause of action asserted againstthat defendant alleging that it is vicariously liable for the tortious conduct of thedefendant Melissa Tsai; as so modified, the judgment entered January 30, 2012, isaffirmed, the cause of action against the defendant Northern [*2]Westchester Hospital Center alleging that it is vicariouslyliable for the tortious conduct of the defendant Melissa Tsai is reinstated, and the matteris remitted to the Supreme Court, Westchester County, for further proceedings on thatcause of action in accordance herewith before a different Justice, including the new trialon the issue of liability against the defendant Melissa Tsai, a trial on the issue ofdamages, if warranted, and the entry of an appropriate amended judgment thereafter; andit is further,
Ordered that one bill of costs is awarded to the plaintiff.
On November 14, 2000, the plaintiff gave birth to a daughter (hereinafter the infant)at the defendant Northern Westchester Hospital Center (hereinafter the hospital). Due tothe presence of "thin" meconium upon delivery, the infant's mouth and nose weresuctioned, as soon as the infant's head emerged, to remove any meconium-stained fluid.After the infant was delivered, the defendant physician Melissa Tsai used a laryngoscopeto suction any meconium from the infant's stomach, and inserted an endotracheal tubethrough the infant's mouth into the airway to check for the presence of meconium belowthe vocal cords. Tsai did not observe meconium in that part of the infant's body. Shortlythereafter, the infant developed, among other things, severe respiratory problems, andunderwent several surgical procedures, including a thoracotomy.
In March 2003, the plaintiff commenced this action, inter alia, to recover damagesfor medical malpractice, alleging that Tsai negligently inserted the endotracheal tube,causing, among other things, a pharyngeal tear which resulted in an infection andpermanent injuries, that the hospital, as Tsai's employer, was vicariously liable for Tsai'stortious conduct, and that the hospital was directly liable to the plaintiff by virtue of itsadoption and implementation of a policy requiring intubation of all infants in whomretained meconium was observed. At the ensuing jury trial, following the close of theplaintiff's case, the hospital moved pursuant to CPLR 4401 for judgment as a matter oflaw on the cause of action asserting that it was directly liable to the plaintiff by virtue ofits alleged policy of intubating newborn infants who had observable retained meconium,and the trial court granted the motion. Following the close of the evidence, the juryreturned a verdict on the issue of liability in favor of Tsai, finding that she did not departfrom accepted medical practice. On November 29, 2011, the Supreme Court entered ajudgment in favor of Tsai and against the plaintiff dismissing the complaint against Tsai,and on January 30, 2012, the Supreme Court entered a judgment in favor of the hospitaland against the plaintiff dismissing the complaint insofar as asserted against the hospital,thus dismissing both the cause of action alleging the hospital's direct liability that wasdisposed of by the CPLR 4401 motion, and the cause of action asserting that the hospitalwas vicariously liable for the tortious conduct of Tsai. The plaintiff appeals from thesejudgments.
"To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, adefendant has the burden of showing that there is no rational process by which the jurycould find in favor of the plaintiff and against the moving defendant" (Figueroa v City of New York,101 AD3d 674, 674-675 [2012]; see Szczerbiak v Pilat, 90 NY2d 553, 556[1997]). "In determining whether the defendant has met this burden, a court must acceptthe plaintiff's evidence as true and accord the plaintiff the benefit of every reasonableinference which can reasonably be drawn from the evidence presented at trial"(Figueroa v City of New York, 101 AD3d at 675). Here, the plaintiff's expertrelied on the Neonatal Resuscitation Guidelines (hereinafter the guidelines) publishedjointly by the American Academy of Pediatrics and the American Heart Association,which provided that the suctioning of a baby's mouth and nose, without also intubatingthe baby, may be adequate when only thin meconium is observed or the baby is "active."However, the plaintiff presented no evidence that the guidelines precluded a doctor fromexercising his or her judgment to intubate a baby after the initial suctioning whenevermeconium of any consistency is observed. Further, the plaintiff presented no evidencethat the hospital had a policy of intubating all infants whenever retained meconium ofany consistency is observable upon delivery. To the contrary, Dr. John Stafford, theChief of Neonatology at the hospital, and Tsai, both of whom were called as witnesses bythe plaintiff, testified that there was no "hard and fast rule about the intubation of infantsthrough meconium" or any "mandates," and that doctors at the hospital exercised their"clinical judgment" in deciding whether intubation was warranted. Therefore, evenaccepting the plaintiff's evidence as true and [*3]affording it every favorable inference, there is no rationalprocess by which the jury could find that the hospital adopted a policy which departedfrom accepted medical practice. Accordingly, the trial court properly granted thehospital's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing thecause of action alleging that such a policy had been adopted, and that its implementationof the policy constituted a departure from accepted medical practice.
However, the trial justice's excessive intervention in the proceedings, as well as thecumulative effect of the trial court's improper conduct, deprived the plaintiff of her rightto a fair trial (see CPLR 5501 [a] [1]; 4017; Rivera v W. & R. Serv. Sta.,34 AD2d 115 [1970]; see generally People v Charleston, 56 NY2d 886, 888[1982]; People v Yut Wai Tom, 53 NY2d 44 [1981]). Accordingly, we grant anew trial on the issue of liability against Tsai.
"[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial"(Habenicht v R. K. O. Theatres, 23 AD2d 378, 379 [1965]; see DeCrescenzo v Gonzalez,46 AD3d 607, 608 [2007]). A trial justice plays a "vital role in clarifying confusingtestimony and facilitating the orderly and expeditious progress of the trial," but that"power is one that should be exercised sparingly" (People v Yut Wai Tom, 53NY2d at 57). 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 untrammelledspirit necessary to effect justice' " (Schaffer v Kurpis, 177 AD2d 379, 380[1991], quoting Kamen Soap Prods. Co. v Prusansky & Prusansky, 11 AD2d676, 676 [1960]).
A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff'scounsel 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 andexercise a high degree of patience and forebearance' " (Salzano v City of NewYork, 22 AD2d 656, 657 [1964], quoting Buckley v 2570 Broadway Corp.,12 AD2d 473, 473 [1960]). Indeed, our review of the record convinces us that therepeated conflict between the court and the plaintiff's counsel, at all phases of thetrial—and often times in the presence of the jury—unnecessarily injectedpersonality issues into the case, which militated against a fair trial. The trial justicedemonstrated a propensity to interrupt, patronize, and admonish the plaintiff's counsel,and gave the plaintiff's counsel significantly less leeway with regard to examination andcross-examination of witnesses than that which was afforded the defendants' counsel. Byway of example, at one point, the trial justice, after precluding the plaintiff's counselfrom cross-examining a witness, advised the plaintiff's counsel, in front of the jury, thatshe was aware of the rules of evidence regarding when an attorney and client can speakduring a break, and would explain them to the plaintiff's counsel "later." Another time,again in front of the jury, following a somewhat heated discussion between the trialjustice and the plaintiff's counsel, the trial justice advised the plaintiff's counsel to "goreview the books tonight." At one sidebar conference, the trial justice went so far as toadvise the plaintiff's counsel, upon indicating that he was interrupting her, that she wouldnot "allow the reporter to take any words from you at this point because I don't think thatyou are going to do any service to yourself, the type of emotional tantrums that you havebeen having." Later in the trial, in front of the jury, the trial justice inappropriatelyadmonished the plaintiff's counsel to "tone down the histrionics," and advised him thatshe was "bewildered" as to counsel's questioning, asserting that she found it to be "notthat important," in effect, irrelevant, and that a question posed by counsel was "not verygood." During one contentious exchange in front of the jury, the trial justice stated thatthe plaintiff's counsel had put on a display that was "clearly, clearly fodder for acontempt citation." In addition to the foregoing, numerous injudicious remarks weremade by the trial justice, both sua sponte and in response to comments made by theplaintiff's counsel. At one point, the trial justice stated to the plaintiff's counsel, in frontof the jury, that if counsel were permitted to examine the defendant's expert witnessbefore trial, he would be "like a leech on a horse." The trial justice further stated that shewas "astonished at the many things" that counsel said during the course of the trial. Wenote that the foregoing is not an exhaustive recitation of the incidents that give us causefor concern.
Under the circumstances of this case, by virtue of the cumulative effect of theimproper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result,the jury could not have considered the issues at trial in a fair, calm, and unprejudicedmanner (see [*4]DeCrescenzo v Gonzalez, 46 AD3d 607 [2007];Sutton v Kassapides, 73AD3d 1021, 1021 [2010]; Gentile v Terrace Hgts. Hosp., 57 AD2d 585[1977]; Dicker v Waldbaum's Inc., 56 AD2d 621 [1977]; Ougourlian v New York CityHealth & Hosps. Corp., 5 AD3d 644 [2004]). Accordingly, a new trial againstTsai on the issue of liability, before a different Justice, is warranted.
The hospital's motion pursuant to CPLR 4401 did not encompass the cause of actionalleging that it is vicariously liable for Tsai's tortious acts, but the judgment entered infavor of the hospital dismissed that cause of action, based upon the jury verdict in favorof Tsai. Since we are reinstating the complaint against Tsai, we must also reinstate thecause of action alleging vicarious liability against the hospital. The final disposition ofthat cause of action must now await the disposition of the trial against Tsai, and theSupreme Court, Westchester County, shall enter an appropriate amended judgment inconnection with that cause of action after that trial, and, if warranted, after conductingany further proceedings that are or may be necessary to determine whether the hospital isvicariously liable for Tsai's conduct and the damages for which it might be liable.
The parties' remaining contentions are either without merit or not properly before thisCourt. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur. [Recalled and vacated, see 110 AD3d 703.]