Opinion
23375/04.
December 21, 2009.
The following papers numbered 1 to 9 read on this motion:
Papers Numbered 1-3 4-7a 7b-8 Exhibits 9
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations) Reply Affidavits (Affirmations) Affidavit (Affirmation) Other PapersUpon the foregoing papers, third-party defendant New York City Health and Hospitals Corporation (Woodhull) moves for an order, pursuant to CPLR 4404, setting aside the jury verdict, as against Woodhull, on the grounds that plaintiff failed to prove his case as a matter of law or, alternatively, that the verdict was against the weight of the credible evidence at trial, and directing that judgment be entered in its favor, or that a new trial be had on the issue of its liability. Alternatively, Woodhull seeks an order granting a new trial as to all issues determined against it on the grounds that the court erred in denying Woodhull's request for a jury charge on the issue of plaintiff's contributory negligence. In lieu of that relief, Woodhull seeks an order setting aside the jury verdict and ordering a new trial on the issue of damages, unless plaintiff stipulates to a substantial reduction of the damages award. Defendant/Third Party Plaintiff Wyckoff Heights Medical Center (Wyckoff) moves for an order dismissing the action insofar as asserted against it on the ground that there was no viable cairn asserted against it at the time of trial and that it is not vicariously liable for the acts or omissions of Tanveer Mir, M.D. Alternatively, Wyckoff seeks an order, pursuant to CPLR 4404, setting aside the jury verdict apportioning liability as to Dr. Mir as a matter of law, or as against the weight of the credible evidence at trial. Wyckoff further moves to set aside the jury verdict as to Dr. Mir and seeks a new trial on the issues of liability and damages with Dr. Mir as a party defendant. Alternatively, Wyckoff seeks an order setting aside the jury verdict and ordering a new trial on the issue of damages, unless plaintiff stipulates to a substantial reduction of the damages award. Finally, plaintiff Ekramy Mokhtar Gouda, as Administrator of the Estate of Moklar Gouda Hanna, cross-moves for an order, finding that Wyckoff is vicariously liable for the acts and/or omissions of Dr. Mir and permitting plaintiff to enter judgment in the amount of $500,000, plus costs and disbursements and interest.
Woodhull Medical Mental Health Center (Woodhull), is a facility owned and operated by the defendant New York City Health and Hospitals Corporation ( Aceituno v Lai On Chan, 46 AD3d 716, 717 [2007]. The court will refer to the third-party defendant as Woodhull throughout this decision.
In separate short form orders dated January 25, 2005, the direct action against Woodhull and Dr. Chen were dismissed on procedural grounds without opposition. The wrongful death causes of action were also dismissed as untimely.
On March 5, 2009, prior to the commencement of trial plaintiff's attorney advised the court that the and Dr. Mir's attorney had stipulated that the action against Dr. Mir was discontinued with prejudice. However, plaintiff stated that evidence as to Dr. Mir's treatment of the decedent would be presented at trial as relevant to Wyckoff's vicarious liability for that treatment.
In this action for medical malpractice, plaintiff contends that his decedent Moktar Gouda Hanna (Mr. Hanna) died as a result of the medical malpractice of defendants while he was a patient first at Woodhull and then at Wyckoff. The case proceeded to trial in this court and, on March 17, 2009, the jury returned a verdict, answering the interrogatories as follows: (1) Dr. Mir (a doctor at Wyckoff) failed to evaluate and recommend amputation on Mr. Hanna in a timely manner and that departure was a substantial factor in causing his pain and suffering; (2) Dr. Julius Garvey (a surgeon at Wyckoff) did not fail to evaluate and perform an amputation on Mr. Hanna; (3) Woodhull did prematurely discharge Mr. Hanna and that departure was a substantial factor in causing his pain and suffering, and; (4) the total amount of damages suffered by Mr. Hanna for his conscious pain and suffering was $500,000.00. The jury apportioned liability at sixty percent (60%) for Dr. Mir and forty percent (40%) for Woodhull.
The parties now make the aforementioned post-trial motions.
THE EVIDENCE AT TRIAL
The Plaintiff's Case
On February 5, 2002, the 71 year-old Mr. Hanna presented to the emergency room at Woodhull. Mr. Hanna had arrived from his home in Egypt earlier that day; when his son Ekramy Gouda met him at the airport, he noticed that his father, who was a diabetic, had a dark spot on his foot.
Witnesses who testified at trial will be identified in bold at their initial mention in this summary.
In the emergency room, the doctors found redness and ulcers on both legs, as well as evidence of gangrene on both feet; Mr. Hanna complained of pain in his right foot that he rated as a "10" on a scale of one to ten; he also had a fever and chills. Mr. Hanna also reported that he had smoked approximately ten cigarettes a day for the past fifty years. He was admitted to the hospital as a service patient under the care of a team of doctors, including Dr. Yawling Chen, a specialist in internal medicine. At admission, Mr. Hanna's primary diagnosis was cellulitis of the right foot and leg, gangrene on both feet and uncontrolled diabetes. Dr. Chen testified that in order for Mr. Hanna to heal quicker, it was important to control his blood sugar levels and that those levels were stabilized during his two-day stay at Woodhull.
Cellulitis is defined as an inflammation of subcutaneous, loose connective tissue (Stedman's Illustrated Medical Dictionary, p. 343 [28th edition]).
While in the hospital, tests performed on Mr. Hanna revealed that he had peripheral vascular disease and poor circulation. According to Dr. Chen, blood tests showed Mr. Hanna to have normal kidney and liver function and that his white blood count was within normal limits.
Because of the swelling and necrosis on his legs and feet, the doctors were concerned about infection, thus, while in the emergency room, Mr. Hanna was placed on an intravenous drip of a broad-spectrum antibiotic. Dr. Chen testified at trial that the hospital chart contains a notation from a surgeon who examined Mr. Hanna that he should continue on the intraverous antibiotics.
Necrosis is the pathological death of one or more cells or of a portion of tissue or organ ( Stedman's at 1284).
Mr. Hanna was also diagnosed with gangrene on both feet. The note from the surgeon states that surgery to amputate the gangrenous feet was not appropriate since the gangrene was "dry", rather than "wet".
Gangrene is defined as necrosis of tissue due to obstruction, loss, or diminution of the blood supply to that tissue ( Stedman's at 788-789).
On February 7th, Mr. Hanna was discharged from Woodhull on oral antibiotics and diabetes medication, and was advised to return for a checkup in two weeks, but to return earlier if his symptoms worsened. Dr. Chen testified that at discharge, Mr. Hanna's prognosis was considered to be "guarded"; his condition needed to be watched.
Plaintiff testified that his father took the oral antibiotics after his discharge from Woodhull. While home, Mr. Hanna began to vomit and experience stomach pains; plaintiff was concerned about these symptoms, but thought that they might be caused by the change in the weather or to his diet, or by the antibiotics he was taking. Thus, plaintiff decided to wait a few days to see if his symptoms abated before returning to the hospital.
On February 11th, when plaintiff noticed that the spot on his father's right toe was getting bigger, he called an ambulance which transported Mr. Hanna to Wyckoff's emergency room.
Mr. Hanna was admitted to Wyckoff that day and Dr. Tanveer Mir, an attending physician, was assigned to his case. At admission, Mr. Hanna complained of having suffered from abdominal and epigastric pain for the past four days, rating that pain as a "4" on a scale of 1-10. He also described pain in his left groin as a "5-6". At trial, Dr. Mir testified that Mr. Hanna was a very sick man at admission and needed to be seen by a variety of specialists. Specifically, Dr. Mir noted that he had a history of diabetes, and tests at the hospital revealed that his glucose levels were very high. A major concern, stated the doctor, were areas of gangrene on his right foot and an area of necrosis on his left foot. Dr. Mir was also concerned that Mr. Hanna might have developed sepsis or an infection in his blood. She explained at trial that such an infection can affect a patient's entire body and can be fatal if left untreated. Mr. Hanna was thus immediately placed on intravenous antibiotics — the antibiotic that he had been taking was changed to a more potent, broader spectrum one. The doctor noted that, while Mr. Hanna's blood test results at admission and during his entire hospital stay were negative for the presence of an infection, his clinical symptoms suggested the presence of sepsis. She explained that that negative blood test result may have been due to the fact that he had been taking antibiotics in and out of the hospital.
Dr. Mir testified that she considered Mr. Hanna's condition life threatening and, at admission, rated his prognosis as guarded to poor. Thus, she considered him a high risk patient who needed a team approach to access the risks of surgery to remove the gangrenous areas on his right foot. The doctor explained that she feared that Mr. Hanna might not survive surgery and thought that the best way to improve his odds of a positive outcome was to consult with specialists from a number of fields, including infectious disease, nephrology, vascular surgery and cardiology. At trial, Dr. Mir described this procedure as "medical optimization", and noted that the tests which had to be performed were time consuming. She emphasized that there were no "quick answers" in Mr. Hanna's case.
An EKG performed on February 12th revealed that Mr. Hanna had previously suffered a heart attack; an echocardiogram performed the next day revealed that he had hypertensive heart disease. Dr. Mir testified that these tests confirmed that Mr. Hanna had profound cardiac issues, including valve problems, coronary artery disease, and thickening of the left wall of the heart. A stress test also produced abnormal results; there was also evidence of lung disease. Moreover, Dr. Mir believed that Mr. Hanna suffered from Buerger's disease, a vascular disease caused by smoking. Dr. Mir also stated that further tests revealed kidney disease and liver function problems. Additionally, Mr. Hanna had anemia and his white blood cell levels were high, which increased his risk of suffering a heart attack. His platelet level was is also elevated which indicated an acute medical illness.
Dr. Julius Garvey, a board-certified vascular surgeon consulted on this case throughout Mr. Hanna's hospitalization. Dr. Garvey testified that, at his initial examination shortly after Mr. Hanna's admission to the hospital, he found Mr. Hanna to be medically stable and not at imminent risk of death, but, nonetheless, concluded that he was a very, very sick man with multiple system failures. Specifically, Dr. Garvey testified that his tests revealed that his liver and kidneys were failing and that he was in borderline heart failure.
Dr. Garvey stated that at his initial examination of Mr. Hanna, he discovered him to have gangrene in his right and possibly his left foot; Dr. Garvey explained that gangrene is often coupled with infection and that antibiotic treatment was appropriate. He considered amputation of Mr. Hanna's right foot, but was also considering a procedure called revascularization in an attempt to reestablish blood flow to Mr. Hanna's right foot, and thereby limit the extent of the amputation. Dr. Garvey stressed at trial that Mr. Hanna's gangrene could not be treated in a vacuum; instead, because of the patient's health risks, a complete work-up was needed, and it took close to a week to evaluate his risk of undergoing the surgery.
As part of Dr. Garvey's evaluation, on February 14th, Mr. Hanna had a non-invasive vascular study, which showed that there were problems with the blood flow in both of his legs. Dr. Garvey explained at trial that a Doppler study of his heart and cardiac vessels revealed that Mr. Hanna had an enlarged heart and valve problems, as well an occlusion, or blockage, of those vessels, but that these tests provided him with insufficient information to access his surgical risk. Thus, Dr. Garvey stated, he wanted Mr. Hanna to undergo an angiogram so that he could obtain a better picture of his heart functioning. However, because of his failing kidneys, this test was risky because the dye used could make his kidney problems worse. After this risk was explained to Mr. Hanna, he refused to undergo the angiogram. On or about February 15th, the doctors attempted to transfer Mr. Hanna to Cornell Hospital so that he could undergo a cardiac catherization, but this transfer could not be arranged, apparently because no beds were available.
As Mr. Hanna's hospital stay progressed, the doctors noted that the blood flow to his feet, particularly his right one, was decreasing. On February 15th, there was a note in Mr. Hanna's chart that he was moaning in pain and was not communicating with the nurses who were caring for him. The next day, Mr. Hanna's blood pressure was low and he was found to be sweaty, which, according to Dr. Mir, could be a sign of either sepsis or a cardiac condition — she noted at trial that, at this point, lot of things were going wrong with Mr. Hanna.
When Dr. Mir examined Mr. Hanna on February 17th, she noticed that he had developed symptoms of sepsis — he appeared more confused and his liver functioning had decreased, as had his white blood cell count. Dr. Garvey also examined him that night and found that the gangrene on his right foot was now severe and that there was now a line of demarcation on his right leg, which indicated that all the tissue below the line was probably dead. The doctors now believed that Mr. Hanna was suffering from severe sepsis and that the benefits of surgery to amputate his right leg below, or possibly above, the knee, outweighed the risks of that procedure, and, while it was life threatening, it might provide his only chance of survival. The surgery was not scheduled to be performed until the next morning because the doctors wanted to stop administering Heparin, a blood thinner, to Mr. Hanna and have him off of it for at least four hours to decrease the risk of the surgery.
Mr. Hanna was taken to the operating room the next morning and suffered a fatal cardiac arrest before the surgery had begun.
Plaintiff testified that he regularly visited his father at the hospital and after his first or second day there, he was moaning in pain all the time, complaining of pain in his leg and stomach, and each day the moaning got worse and his complaints increased. He also described his father as being "very, very weak" while at Wyckoff.
Dr. Richard Luft, a board-certified surgeon, examined Mr. Hanna's hospital records, as well as the depositions conducted before trial, and testified as an expert on behalf of plaintiff. Dr. Luft testified that vascular problems were very common in diabetic patients, as were gangrenous feet, and stated that he had performed hundreds of limb amputations as part of his surgical practice.
Dr. Luft noted that a bone scan taken at Woodhull showed evidence of infection in the bones on the top of Mr. Hanna's right foot and between his right toes. According to the doctor, Mr. Hanna had no symptoms of sepsis at Woodhull and was appropriately treated with intravenous antibiotics. However, opined Dr. Luft, the doctors at Woodhull should not have taken Mr. Hanna off the intravenous antibiotics so soon.
Dr. Luft noted that at the time of Mr. Hanna's discharge from Woodhull, tests revealed that his kidney and liver function were essentially normal, and his glucose, which had been high at the time of his admission to the hospital, had been brought under control.
Dr. Luft stated that he believed that Mr. Hanna followed a "septic course" while at Wyckoff. Acknowledging that his blood cultures at his admission to Wyckoff and throughout his stay there were negative, Dr. Luft explained that this is not an uncommon phenomenon for a patient who has an infection, but who, like Mr. Hanna, is taking an antibiotic. According to the doctor, the negative result is seen despite the presence of bacteria in the blood because the antibiotic is killing the bacteria.
On cross-examination, Dr. Luft was asked how the antibiotic could have been killing off bacteria in Mr. Hanna's blood when he was throwing up the medicine. Dr. Luft responded that the vomiting that Mr. Hanna experienced after he was discharged from Woodhull was likely a reaction to the oral antibiotics he was taking, or possibly was a symptom of sepsis. He explained that if the vomiting was caused by the antibiotics, this negative reaction was evidence that at least some of the medicine was being absorbed into the bloodstream.
Dr. Luft testified that sepsis can cause ill effects on many of the body's organs and can lead to multi-organ failure, which can be fatal. The doctor added that sepsis can also affect the body's ability to control glucose levels.
According to Dr. Luft, Mr. Hanna began to exhibit some manifestations of sepsis while at Wyckoff. Specifically, his kidneys which had been normal at his admission, began to show significant impairment, as did his liver. Additionally, the doctors began to have trouble controlling Mr. Hanna's blood glucose levels.
Dr. Luft found fault with the way Mr. Hanna's case was handled from the time he was examined in the emergency room at Wyckoff In this regard, he noted that a diabetic with an infection in his leg which was tracking into his right foot and who also had gangrene in that foot, should have been considered to be in an emergency situation and should have been treated as such. Noting that as early as February 12, 2002, Mr. Hanna's first full day at Wyckoff, the hospital notes indicate that the doctors were considering sepsis as a diagnosis. Dr. Luft stressed that the doctors needed to deal with Mr. Hanna's condition effectively and expediently to treat the infection and avoid its spread.
While Dr. Luft concurred with the need for consultations to evaluate the safety of surgery, he stated that this evaluation should have been completed within the first 48 hours after Mr. Hanna was admitted to the hospital and that amputation surgery should have been performed within the next 24 hours. The surgeon, explained Dr. Luft, should have amputated Mr. Hanna's affected toes and then evaluated whether the infection had spread. Dr. Luft stated that if there was evidence of a spread of the infection, the surgeon should have then "debrided" the tissue. This procedure entailed opening the skin around the infection; this opening would act as a "release valve", allowing the infection to come out, rather than spread through the body. Dr. Luft explained that this procedure would have bought the doctors time to further evaluate Mr. Hanna to determine if his leg could be saved. Dr. Luft opined that the failure of Dr. Mir and her team to properly control the infection, and the resultant sepsis, was a departure from accepted medical standards and that this failure caused he sepsis to progress and led to the severe deterioration of Mr. Hanna's body.
Debridement is defined as the excision of devitalized tissue and foreign matter from a wound ( Stedman's at 496).
According to Dr. Luft, had the amputation been performed three days after his admission to Wyckoff, Mr. Hanna's chance of survival would have been ninety percent (90%). In that regard, the doctor noted that while sepsis was present at that time, it had not yet begun to seriously affect Mr. Hanna'a organs. Moreover, while there were slight abnormalities in his heart at that time, they were not so serious as to be a contraindication for surgery
Dr. Luft concluded that the doctor's failure to timely evaluate Mr. Hanna and perform the surgery after that timely evaluation was a departure form accepted medical standards and led to the progression of Mr. Hanna's sepsis, which caused the deterioration of his major organs and resulted in increased pain.
Wyckoff's case Dr. Moshe Haimov, a Board certified vascular surgeon, testified on behalf of Wyckoff. Dr. Haimov stated that, during the course of his career, he had performed many leg amputations and had treated diabetic patients suffering from gangrene.
Dr. Haimov testified that when Mr. Hanna arrived at Woodhull, he was suffering from dry gangrene of the toe and cellulitis; he noted that since gangrene takes time to develop, Mr. Hanna probably first developed it while in Egypt. The doctor also related that Mr. Hanna was suffering from peripheral artery disease in the lower extremities, but that he had neither sepsis nor renal insufficiency while at Woodhull.
It was Dr. Haimov's opinion that the doctors at Woodhull properly treated Mr. Hanna with antibiotics and elevated his foot, but that it was inappropriate to discharge him on oral, rather than intravenous, antibiotics. He also stated that the doctors should not have discharged him until they had discovered the source of the gangrene to prevent it from spreading. This premature discharge, opined Dr. Haimov, was a substantial contributing factor of the progression of his disease during the time Mr. Hanna left Woodhull until the time he was admitted to Wyckoff.
Dr. Haimov also opined that, during the four days that Mr. Hanna was at home following his premature discharge from Woodhull, he was not able to absorb the antibiotics he was taking because he would vomit the medication right up. The doctor stated that Mr. Hanna should have immediately sought medical intervention when he began to vomit and experience nausea and abdominal pain. His failure to do so, stated the doctor, contributed to the worsening of both his diabetes and his infection.
By the time Mr. Hanna arrived at Wyckoff, noted Dr. Haimov, he had major heart problems, which posed an immediate threat to his life, gangrene on his first and fourth toes, some infection on his foot, elevated blood sugar, and an elevated white blood count evidencing an infectious process. Dr. Haimov stated that Mr. Hanna was a "complicated" patient, and, thus, it was appropriate for the doctors at Wyckoff to admit him to the medical floor to attempt to control his diabetes and to treat his infection with antibiotics.
It was Dr. Haimov's opinion that Mr. Hanna did not present to Wyckoff with sepsis, and stated that there no evidence that he developed sepsis while he was a patient there. In this regard, the doctor noted that Mr. Hanna had none of the symptoms of the condition, which he described as a high fever, rapid heartbeat, and unstable blood pressures. Dr. Haimov stated that further evidence to support his conclusion that Mr. Hanna did not have sepsis on admission was the fact that his blood culture was negative for the presence of bacteria. In this regard, he disagreed with plaintiff's expert's opinion that that negative result could be explained by the fact that Mr. Hanna had been taking antibiotics, stating that he could not have been absorbing enough, if any, of the oral antibiotics on which he was discharged since he was vomiting.
Dr. Haimov opined that the treatment rendered to Mr. Hanna at Wyckoff by Drs. Mir and Garvey was in accordance with accepted standards of medical treatment, and was not a substantial cause of his suffering. Specifically, Dr. Haimov disagreed with Dr. Luft's opinion that the doctors at Wyckoff should have amputated Mr. Hanna's gangrenous toes within 72 hours of his admission to the hospital. Dr. Haimov noted that Mr. Hanna had dry gangrene on two toes and cellulitis on the plantar surface of his foot and stated that amputating his toes would not have been of any benefit and may have made matters worse. According to the doctor, because of the poor blood supply to his feet, any area that was cut could become gangrenous as well.
Thus, stated the doctor, it would have been a departure from the standard of care to amputate Mr. Hanna's toes before a thorough evaluation was conducted and it was appropriate for the doctors to attempt to limit the gangrene and salvage the leg. It was Dr. Haimov's opinion that Mr. Hanna received excellent care from the doctors at Wyckoff, and that it was particularly appropriate for them to seek multiples consultations to address his multiple medical issues. Dr. Haimov noted that one of the tests conducted indicated that Mr. Hanna had, at some point, suffered a heart attack and it was important that a further cardiac work up, as scheduled by the Wyckoff doctors, be conducted to determine when this attack had occurred. He stated that this was particularly important because if the attack was recent, this would present a risk of death in surgery.
According to Dr. Haimov, in light of the vascular studies showing impaired circulation in both legs and particularly in the right leg, it was appropriate for Dr. Garvey to consider a revascularization procedure to attempt to improve the circulation. Dr. Haimov explained the theory of "medical optimization," whereby the doctor attempts to fix what needs to be fixed before performing surgery on a patient.
Dr. Haimov also disagreed with Dr. Luft's characterization of Mr. Hanna as an emergency patient from the time of his admission to Wyckoff, noting that he remained fairly stable until February 16, 2002, and that an urgency for surgery did not emerge until the next day when the gangrene got worse. He explained that this worsening was evidenced by the line of demarcation on his leg indicating that the whole foot was now gangrenous and that the lower leg could not be salvaged with vascular surgery. In light of his condition during his early stay in the hospital, opined Dr. Haimov, the tests and evaluations were conducted in a reasonably expedient fashion.
Dr. Haimov testified that an above knee amputation on a patient with Mr. Hanna's medical conditions had a 25 to 30 percent mortality rate. The doctor opined that Mr. Hanna died from complications of arteriosclerosis and suffered either a heart attack, or stroke, or both.
The Jury Verdict
As noted, the wrongful death cause of action was dismissed as untimely; the only damages sought were for Mr. Hanna's pain and suffering. Following deliberations, the jury answered the interrogatories as follows:
1. Dr. Mir failed to evaluate and recommend amputation on Mr. Hanna in a timely manner and that departure was a substantial factor in causing his pain and suffering;
2. Dr. Julius Garvey did not fail to evaluate and perform an amputation on Mr. Hanna;
3. Woodhull did prematurely discharge Mr. Hanna and that departure was a substantial factor in causing his pain and suffering, and,
4. the total amount of damages suffered by Mr. Hanna for his conscious pain and suffering was $500,000.00, and Dr. Mir was sixty percent (60%) liable for Mr. Hanna's injuries and Woodhull was forty percent (40%) responsible for those injuries.
Discussion Wyckoff's motion: The discontinuance against Dr. Mir and request for leave to amend
During jury selection, plaintiff's attorney advised the court that he and the attorney for Dr. Mir had come to an agreement to discontinue the action against Dr. Mir with prejudice. In response, Wyckoff sought leave to amend its complaint in order to assert a cross claim against Dr. Mir.
CPLR 3217 (a) permits a party asserting a claim to discontinue against another party if all the parties to the action have stipulated to such discontinuance in writing. Here, no such written stipulation was submitted to the court. However, 3217(b) provides, that absent a stipulation, the court may order such a discontinuance upon the request of the party asserting the claim. "[T]he authority of a court to grant or deny an application pursuant to CPLR 3217(subd. b) by a party seeking voluntary discontinuance is within its sound discretion [and because] ordinarily a party cannot be compelled to litigate, . . . absent special circumstances, discontinuance should be granted" ( White v County of Erie, 309 AD2d 1299, 1300, quoting Tucker v Tucker, 55 NY2d 378, 383-384). When considering whether special circumstances exist to justify denial of an application seeking discontinuance, the court should consider whether defendant would be prejudiced by the discontinuance ( see Tucker, 55 NY2d at 383-384; White, 309 AD2d at 1300-1301; 25 Jay Street Tenants' Ass'n. v 25 Jay Street, LLC., 290 AD2d 503, 504).
As an initial matter, while Wyckoff claims that the court never ordered a discontinuance, as is clear from the record, the court did so order when it noted, after the parties presented their arguments for and against the discontinuance, that Dr. Mir was no longer a party to the action. And, the court is unable to discern any prejudice to Wyckoff as a result of the discontinuance against Dr. Mir. First, as Wyckoff's attorney and the court notes a trial, any right Wyckoff possesses to bring an action for indemnity following judgment, pursuant to General Obligations Law Section 16, is unaffected by the discontinuance.
Moreover, Wyckoff's claim that Dr Mir's absence as a defendant somehow prevented the jury from being presented with a defense of her actions is utterly without a basis in fact. Any liability on the part of Wyckoff was based upon the acts or omissions of two of its physicians, Drs. Mir and Garvey (who was also not a defendant to the action) and, thus, because it was subject to vicarious liability for the doctors' negligence, Wyckoff had to, and in fact, did fully cross-examine these doctors, as well as plaintiff's expert and its own expert, as to the appropriateness of the actions of Drs. Mir and Garvey in the treatment of Mr. Hanna. Moreover, Wyckoff strenuously argued in summation that the doctors' treatment of Mr. Hanna was in accordance with accepted standards of medical treatment. Thus the court discerns no error in its ordering of the discontinuance against Dr. Mir.
Finally, because Dr. Mir was not a party to the action following the discontinuance, the court finds that it properly ruled that it would be inappropriate to grant Wyckoff's request to amend its answer to assert a cross claim against her. In that regard, the court notes that Wyckoff was free to assert such a claim when it filed its answer. Moreover, as noted, the discontinuance does not affect any rights the hospital possesses to seek indemnity from Dr. Mir pursuant to statute and/or its employment contract between it and the doctor.
Wyckoff's motion and plaintiff's cross-motion: vicarious liability
In its motion, Wyckoff claims that the court failed to rule on the issue of vicarious liability and that further it is cannot be held to be vicariously liable for the acts and omissions of Dr. Mir because she was not an employee of the hospital. Plaintiff, in his cross motion seeks a ruling from the court that Wyckoff is vicariously liable for the malpractice of Dr. Mir.
As an initial matter, the court notes that the issue of Wyckoff's liability for the acts of its doctors was extensively argued prior to summations by the attorneys for Wyckoff and plaintiff, with Wyckoff acknowledging that the determination would ultimately be made by the court. And, it was clear to all counsel at trial that the court determined that Wyckoff was indeed vicariously liable for Drs. Mir and Garvey and the court so instructed the jury. That determination was entirely proper and, thus, the court denies that branch of Wyckoff's motion which seeks a new trial on the ground it was erroneous.
Plaintiff's cross motion for a finding of vicarious liability is moot at this determination was made at trial.
A doctor's status as a private attending physician, or an independent contractor does not automatically exempt a hospital from liability for the negligence of physicians utilizing its facilities ( Mduba v Benedictine Hosp., 52 AD2d 450). "[A] hospital may be held vicariously liable for the acts of independent physicians if the patient . . . enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician ( see, Mduba, 52 AD2d at 453; see also, Noble v. Porter, 188 AD2d 1066; Augustin v Beth Israel Hosp., 185 AD2d 203, 205-206; Soltis v State of New York, 172 AD2d 919.
Such emergency room entry, especially by ambulance and without referral instructions from a private physician, as occurred here, creates an apparent or ostensible agency or agency by estoppel situation. In other words, "a hospital may be held vicariously liable, based upon the principle of agency by estoppel, for the acts of an independent physician where the physician was provided by the hospital or was otherwise acting on the hospital's behalf, and the patient reasonably believed that the physician was acting at the hospital's behest ( Soltis, 172 AD2d at 920-921; see Sarivola v Brookdale Hosp. and Med Ctr., 204 AD2d 245, 245-246, lv den 85 NY2d 805; see also, Hill v St. Clare's Hospital, 67 NY2d 72, 80-81; Hannon v Siegel Cooper Co., 167 NY 244, 247; Santiago v Archer, 136 AD2d 690, 691). In such situations, "employment contracts unknown to a patient admitted to a hospital through the emergency room do not affect the principle of vicarious liability ( Mduba, 52 AD2d at 453; Ryan v NYC Health and Hospitals Corp., 220 AD2d 734, 736).
The facts of this case fit squarely within the holding of Mduba and its progeny. The critically ill Mr. Hanna, who had just arrived from his homeland of Egypt, entered Wyckoff through the emergency room and was assigned to Dr. Mir, who then sought consultation from Dr. Garvey and other specialists. Thus, the contract between Dr. Mir and the hospital and any rights and obligations it created vis a vis the hospital and its doctors, was not binding upon Mr. Hanna and the jury was properly instructed that Wyckoff was liable for the malpractice of its doctors. Wyckoff's and Woodhull's motions: sufficiency of the evidence
Woodhull seeks a judgment notwithstanding the verdict or, alternatively, a new trial, on the ground that the jury's verdict finding it negligent in its release of Mr. Hanna was error as a matter of law or was against the weight of the evidence. Wyckoff, in turn, seeks the same relief in regard to the jury finding that Dr. Mir was negligent in failing to timely perform the amputation of Mr. Hanna's leg.
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage ( see Holbrook v United Hospital Medical Center, 248 AD2d 358, 358-359; Bloom v City of New York, 202 AD2d 465).
As is relevant here, CPLR 4404(a) states:
Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence.
In applying this provision, it has been held that to sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented" ( Nicastro v Park, 113 AD2d 129, 132 [1985], quoting Cohen v Hallmark Cards, 45 NY2d 493, 498; see also Kaplin v Miranda, 37 AD3d 762).
Further, it is well established that a jury verdict may not be set aside as against the weight of the evidence unless it plainly appears that the evidence so preponderates in favor of the other side, that such verdict could not have been reached by any fair interpretation of the evidence (CPLR 4402(a), Nicastro, 113 AD3d at 134; see Cohen, 49 NY2d at 498-499; Kaplin 37 AD3d at 762-763). Moreover, courts are cautioned to exercise the discretionary power to set aside a verdict sparingly to avoid usurping the jury's function (see Nicastro, 113 AD2d at 134). In that regard, great deference is accorded to the fact-finding function of the jury, since, having seen and heard the witnesses at trial, it is in the foremost position to assess their credibility ( see Ashby-Smith v Al-Jac Trans Serv., 275 AD2d 133; Teneriello v Travelers Co., 264 AD2d 772, lv denied 94 NY2d 758). Here, the court finds that the verdicts were supported by legally sufficient evidence and were not contrary to the weight of that evidence.
Wyckoff
Plaintiff's expert Dr. Luft concluded that Dr. Mir's treatment of Mr. Hanna was a departure from accepted medical standards and was a substantial cause of Mr. Hanna's pain and suffering. According to Wyckoff, Dr. Luft's opinion was based on the assumption that Mr. Hanna had developed sepsis while at Wyckoff, an assumption which Wyckoff claims is not supported by any credible evidence. In particular, Wyckoff points to the fact that blood tests performed on Mr. Hanna were negative for bacteria and states that this proved the absence of sepsis.
In making this argument, Wyckoff ignores the fact that Dr. Luft explained that these blood tests were negative because of the effect of the antibiotics that Mr. Hanna had been taking since his admission to Woodhull. While Wyckoff states that Mr. Hanna could not have absorbed any of those antibiotics because he was vomiting, the expert disagreed, stating that it was likely that the antibiotics were causing him to vomit, and the fact that he was having that reaction was proof that he was absorbing at least some of the medication.
And, as noted, Dr. Luft testified that as early as his first day in the hospital, the doctors were considering a diagnosis of sepsis. And, indeed, Dr. Mir testified that she was concerned that the patient may have developed sepsis from the infection of his foot, and concurred that the antibiotics may have masked the infection and explained the negative blood test results. Dr. Mir also stated that sepsis could affect the whole body and be fatal if untreated. In that regard, Dr. Luft testified that there was ample evidence that Mr. Hanna, who was stable at the time of his admission to Wyckoff, followed a septic course while at the hospital, which negatively affected his kidney, liver and glucose levels.
Dr. Luft pointed to the facts that Mr. Hanna exhibited manifestations of sepsis, as well as the doctors' physical findings — specifically the infection in Mr. Hanna's right leg — and stated that these facts should have led the doctors to treat his condition as an emergency, which they failed to do. While Dr. Luft agreed with Dr. Mir that the consultations with various specialists were appropriate to assess the safety of surgery, he explained that these consultations should have been conducted within the first 48 hours after Mr. Hanna's admission to the hospital and amputation surgery should have been performed within the next 24 hours. Had this time table been followed, stated the doctor, Mr. Hanna would have had a ninety percent chance of recovery.
As noted in the summary of his testimony above, Dr. Luft explained that the minimum surgery that should have been performed at Wyckoff after this initial 72 hours was one to amputate the affected toes and, if the infection was found to be spreading, a procedure to debride the tissue should have been performed. This latter procedure, explained Dr. Luft, would have halted the spread of the infection and bought the doctors time to attempt to treat it and save the leg. As noted, Dr Luft stated that there was nothing about Mr. Hanna's condition on his third day at Wyckoff that was a contraindication to this procedure, including his heard condition.
Dr. Luft concluded that the doctor's failure to timely evaluate Mr. Hanna and perform the surgery after that timely evaluation was a departure from accepted medical standards and led to the progression of Mr. Hanna's sepsis which caused the deterioration of his major organs and resulted in increased pain.
While the jury could have credited the testimony of Dr. Haimov, in which he stated that Dr. Mir's treatment of Mr. Hanna was in all respects proper, it was also reasonable for it to instead find Dr. Luft's contrary opinion to be more credible. In short, the jury was free to give the varying opinions the weight it saw fit ( see Naveja v Hillerest Gen. Hosp., 148 AD2d 429), and it cannot be said that the plaintiffs expert was incredible as a matter of law ( see Donohoe v Goldner, 168 AD2d 412 [1989). Thus, since, the plaintiff's evidence at trial was legally sufficient and the jury verdict was supported by credible evidence, the court must deny that branch of Wyckoff's motion which seeks to overturn that verdict.
Woodhull
The court also denies that branch of Woodhull's motion seeking the same relief since the jury verdict finding liability against Woodhull was also supported by credible evidence at trial.
In arguing to the contrary, Woodhull states that there was no evidence that Mr. Hanna's gangrene worsened while he was at Woodhull. However, there was evidence that there was a note on Mr. Hanna's chart that he should continue on intravenous antibiotics. Instead, he was discharged on oral antibiotics and, four days later, at his admission to Wyckoff, the area of gangrene and swelling on his foot had increased and his liver and kidney had begun to show signs of deterioration and his blood glucose level had greatly increased.
According to Dr. Haimov, this deterioration was the direct result of Mr. Hanna's premature discharge from Woodhull and the fact that he was put on oral antibiotics, which he was vomiting up at home. The doctor further opined that Woodhull's discharge of Mr. Hanna was premature in that it occurred before the doctors there attempted to discover the source of the gangrene and attempted to prevent it from spreading.
With this legally sufficient evidence, the jury could reasonably conclude that Woodhall was negligent in prematurely discharging Mr. Hanna and that this discharge was a substantial contributing cause of his pain and suffering. Wyckoff and Woodhull's motions: charge on contributory negligence
Woodhull also claims that there was no action against it at the time of the verdict. This contention is premised on its assertion that there were no claims against Wyckoff and thus Wyckoff's third party action against it was rendered academic. As noted, supra, Wyckoff is vicariously liable for the acts of Dr. Mir and, thus, following the jury's verdict finding her negligent, Wyckoff may look to Woodhull for indemnity.
At trial, both Wyckoff and Woodhull sought a charge that the jury could find Mr. Hanna contributorily negligent for his pain and suffering. This court declined to give this charge on the ground that it was not supported by the evidence at trial.
The issue of comparative negligence is usually a question of fact. However, it should not be submitted to the jury unless there is a valid line of reasoning and permissible inferences from which rational people can draw a conclusion of negligence on the basis of the evidence presented at trial. ( see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517) Here, as the court ruled at trial, the evidence did not lend itself to such a charge.
In fact, that evidence established that Mr. Hanna took the oral antibiotics that he was given at his release from Woodhull and returned to the hospital when it was apparent that his leg condition had worsened. While he was advised to return to the doctor if his condition deteriorated, there was no evidence that he was advised what symptoms to look for, or that he was told whether he should immediately return to the hospital if he felt ill, or if it was safe to see if he began to feel better. Nor was there evidence how that delay worsened his condition or contributed to his pain and suffering.
Put simply, no evidence was presented to support a theory that Mr. Hanna, a layman, should have been aware that his symptoms may have been caused by a worsening of his infection. Indeed, after Woodhull discharged Mr. Hanna, it was reasonable for him to conclude that it would be safe for him to convalesce at home, and that his stomach upset may have been caused by his adjustment to a new antibiotic. Thus, a charge on contributory negligence was simply not supported by the evidence.
Woodhull and Wyckoff's motion: the award for conscious pain and suffering
In a personal injury action, a jury's damage award is set aside as inadequate only where the award "deviates materially from what would be reasonable compensation" (CPLR 5501[c], see Felitti v Daughriety, 12 AD3d 909, 910; Marshall v Lomedico, 292 AD2d 669, 669-670; Cline v State of New York, 289 AD2d 672, 673). A reviewing court must conclude that the "evidence so preponderates in favor of plaintiff that no fair interpretation of the evidence could lead to the result reached by the jury" ( Braco v OCB Rest. Co., 5 AD3d 920, 921; see Lolik v Big v Supermarkets, 86 NY2d 744, 746; Allain v Les Indus. Portes Mackie, 16 AD3d 863, 865). However, when making this determination, great deference must be given to the jury's interpretation of the evidence presented ( see Braco, 5 AD3d at 921; Marshall, 292 AD2d at 670).
The evidence at trial supports a conclusion that Mr. Hanna had moderate to severe pain from the gangrene and infection in his foot and leg at the time of his admission to Woodhall. That pain had apparently diminished at the time of what the jury concluded was his premature discharge from Woodhull but, during his four days at home following that discharge, he suffered severe vomiting and severe abdominal pain, a reaction to either the medication or developing sepsis. By the time he was admitted to Wyckoff, Mr. Hanna described the pain in his left groin as a 5 to 6 and the pain in his stomach as a 9. Moreover, the gangrene and infection in his foot and leg had increased in size and sepsis had begun to affect his major organs. This pain got progressively worse during his stay at Wyckoff — plaintiff described how his father's moans of pain increased each day and how he became more and more weak.
Of course, there is no allegation that any action or inaction by the defendants caused either Mr. Hanna's infection or his gangrene, and, thus, some of the pain that he suffered as a result of these conditions cannot be attributable to defendants. However, it was alleged and the evidence supported the jury's conclusion that Woodruffs premature discharge of Mr. Hanna exacerbated his condition and led to the sepsis he suffered at Wyckoff. Moreover, the evidence also supported the jury's conclusion that Dr. Mir negligently delayed Mr. Hanna's surgery — Dr. Luft testified that surgery and a possible debridement to stop the spread of the infection should have been conducted by his third day at Wyckoff — the continued pain he suffered as a result of the progression of his sepsis can be attributed to that delay.
As noted above, the jury awarded plaintiff $500,000 for his father's conscious pain and suffering, an award defendants claim is excessive.
"While the amount of damages to be awarded for personal injuries is primarily a question for the jury, it may be set aside if it deviates materially from what would be reasonable compensation" ( Goady v Utopia Home Care Agency, 305 AD2d 540, 542; see CPLR 5501 [c]). Here, it is true that when Mr. Hanna presented himself for medical care he had pre-existing conditions, he was in very serious condition, and the period of time under defendants' care was relatively brief. However, it cannot be said that the award of $500,000 for conscious pain and suffering deviated materially from what would be considered reasonable compensation ( see Glaser v County of Orange, 54 AD3d 997 [award of $1,000,000 for plaintiff's decedent, fatally injured in accident and only conscious for two to three minutes thereafter, was excessive to extent it exceeded $350,000]; Bennett v Henry, 39 AD3d 5 75 [award of $400,000 for conscious pain and suffering was not excessive; decedent was struck and killed by a vehicle as she was attempting to cross the street]; cf. Twersky v Busche, 37 AD3d 704 [award of $1,000,000 for conscious pain and suffering when decedent experienced "considerable pain" for a two and one-half hour period was did not deviate from what would be reasonable compensation]).
The court has considered defendants' remaining contentions and finds them to be without merit.
Accordingly, the motions of defendant Woodhull and Wyckoff are denied. Plaintiff's cross motion for leave to enter judgment is granted.
This constitutes the decision and order of the court.