| Porcelli v Northern Westchester Hosp. Ctr. |
| 2013 NY Slip Op 06354 [110 AD3d 703] |
| October 2, 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.
Motion by the appellant for leave to reargue appeals from two judgments of theSupreme Court, Westchester County, entered November 30, 2011, and January 30, 2012,respectively, which were determined by decision and order of this Court dated May 15,2013. Cross motion by the respondent Northern Westchester Hospital Center for leave toreargue the appeals and, upon reargument, to modify the decision and order of this Courtdated May 15, 2013, by deleting the provision awarding costs to the appellant, payableby Northern Westchester Hospital Center.
Upon the papers filed in support of the motion and the cross motion, and the papersfiled in opposition thereto, it is
Ordered that the cross motion is denied; and it is further,
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated May 15, 2013 (Porcelli v Northern Westchester Hosp. Ctr., 106 AD3d 888[2013]), is recalled and vacated, and the following decision and order is substitutedtherefor:
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 30, 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 [*2]policy of intubation of certain newborn infants, made at theclose of the plaintiff's evidence, and upon the jury verdict, is in favor of that defendantand against her, in effect, dismissing the causes of action asserted against that defendantalleging that it is directly liable to the plaintiff in connection with its alleged policy ofintubation of certain newborn infants and that it is vicariously liable for the tortiousconduct of the defendant Melissa Tsai.
Ordered that the judgment entered November 30, 2011, is reversed, on the law, thecomplaint is reinstated against the defendant Melissa Tsai, and the matter is remitted tothe Supreme Court, Westchester County, for a new trial against the defendant MelissaTsai before a different Justice, 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 Westchester Hospital Centeralleging that it is vicariously liable for the tortious conduct of the defendant Melissa Tsaiis reinstated, and the matter is remitted to the Supreme Court, Westchester County, forfurther proceedings on that cause of action in accordance herewith before a differentJustice, including the new trial against the defendant Melissa Tsai, and the entry of anappropriate amended judgment thereafter; and it 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 30, 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 [*3]hasmet this burden, a court must accept the plaintiff's evidence as true and accord theplaintiff the benefit of every reasonable inference which can reasonably be drawn fromthe evidence presented at trial" (Figueroa v City of New York, 101 AD3d at675). Here, the plaintiff's expert relied on the Neonatal Resuscitation Guidelines(hereinafter the guidelines) published jointly by the American Academy of Pediatrics andthe American Heart Association, which provided that the suctioning of a baby's mouthand nose, without also intubating the baby, may be adequate when only thin meconium isobserved or the baby is "active." However, the plaintiff presented no evidence that theguidelines precluded a doctor from exercising his or her judgment to intubate a babyafter the initial suctioning whenever meconium of any consistency is observed. Further,the plaintiff presented no evidence that the hospital had a policy of intubating all infantswhenever retained meconium of any consistency is observable upon delivery. To thecontrary, Dr. John Stafford, the Chief of Neonatology at the hospital, and Tsai, both ofwhom were called as witnesses by the plaintiff, testified that there was no "hard and fastrule about the intubation of infants through meconium" or any "mandates," and thatdoctors at the hospital exercised their "clinical judgment" in deciding whether intubationwas warranted. Therefore, even accepting the plaintiff's evidence as true and affording itevery favorable inference, there is no rational process by which the jury could find thatthe hospital adopted a policy which departed from accepted medical practice.Accordingly, the trial court properly granted the hospital's motion pursuant to CPLR4401 for judgment as a matter of law dismissing the cause of action alleging that such apolicy had been adopted, and that its implementation of the policy constituted a departurefrom 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 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] intothe 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 forbearance' " (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 [*4]inappropriately admonished the plaintiff's counsel to "tonedown the histrionics," and advised him that she was "bewildered" as to counsel'squestioning, asserting that she found it to be "not that important," in effect, irrelevant,and that a question posed by counsel was "not very good." During one contentiousexchange in front of the jury, the trial justice stated that the plaintiff's counsel had put ona display that was "clearly, clearly fodder for a contempt citation." In addition to theforegoing, numerous injudicious remarks were made by the trial justice, both sua sponteand in response to comments made by the plaintiff's counsel. At one point, the trialjustice stated to the plaintiff's counsel, in front of the jury, that if counsel were permittedto examine the defendant's expert witness before trial, he would be "like a leech on ahorse." The trial justice further stated that she was "astonished at the many things" thatcounsel said during the course of the trial. We note that the foregoing is not anexhaustive recitation of the incidents that give us cause for 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 DeCrescenzo vGonzalez, 46 AD3d 607 [2007]; Sutton v Kassapides, 73 AD3d 1021, 1021 [2010];Gentile v Terrace Hgts. Hosp., 57 AD2d 585 [1977]; Dicker v Waldbaum'sInc., 56 AD2d 621 [1977];Ougourlian v New York City Health & Hosps. Corp., 5 AD3d 644 [2004]).Accordingly, a new trial against Tsai, 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.