Kraus v. New Rochelle Hosp. Medical Center

• Citation: 216 A.D.2d 360,628 N.Y.S.2d 360
• Parties: Barbara KRAUS, et al., Respondents-Appellants, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER, Appellant-Respondent.
• Decision Date: 12 June 1995
• Court: New York Supreme Court Appellate Division

Page 360

628 N.Y.S.2d 360

216 A.D.2d 360

Barbara KRAUS, et al., Respondents-Appellants, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

June 12, 1995.

Clark, Gagliardi & Miller, P.C., White Plains (Henry G. Miller and Lawrence T. D'Aloise, Jr., of counsel), for appellant-respondent.

Pirrotti & Pirrotti, Ardsley (Anthony J. Pirrotti, Sr., and Anthony J. Pirrotti, Jr., of counsel, Richard W. Ashnault on the brief), for respondents-appellants.

Before PIZZUTO, J.P., and HART, FRIEDMANN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful termination of employment, etc., the defendant appeals, as limited by its notice of appeal and brief, from so much of a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated September 16, 1994, as is in favor of the plaintiff Barbara Kraus in the principal sum of $703,250 for past and future wages and fringe benefits, attorney's fees in the principal sum of $557,800, and disbursements in the principal sum of $29,400, and the plaintiffs cross-appeal, as limited by their notice of appeal and brief, from so much of the same judgment as, in effect, (a) dismissed their cause of action for punitive damages, (b) dismissed the cause of action of the plaintiff Barbara Kraus for reinstatement to her position, and (c) reduced the award for lost wages by the income earned by Mrs. Kraus after she was terminated. The plaintiffs' notice of cross appeal from the order dated July 13, 1993, is deemed a premature notice of appeal from the judgment (CPLR 5520[c].

ORDERED that the judgment is modified, on the law and the facts, and as a matter of discretion, by (1) deleting so much of the first decretal paragraph thereof as awarded damages for future wages and future fringe benefits, (2) deleting so much of the third decretal paragraph thereof as awarded counsel fees in the principal sum of $478,450 for the period December 8, 1990, to September 3, 1993, and in the principal sum of $79,350 for the period October 13, 1993 to February 16, 1994, and substituting therefor a provision awarding counsel fees in the principal sum of $250,000 for the period December 8, 1990, to September 3, 1993, and in the principal sum of $59,066 for the period October 13, 1993, to February 16, 1994, (3) deleting so much of the fifth decretal paragraph thereof as awarded disbursements in the principal sum of $28,000 for the period December 8, 1990 to September 3, 1993, and substituting therefor a provision awarding disbursements in the principal sum of $20,000 for that period, and (4) adding thereto a decretal paragraph directing the defendant to reinstate the plaintiff Barbara Kraus to her position as vice-president of nursing. As so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County for entry of an appropriate amended judgment.

The plaintiff Barbara Kraus was employed by the defendant, New Rochelle Hospital Medical Center (hereinafter the hospital), as vice-president of nursing beginning in 1981. On October 14, 1987, several nurses working in the intensive care unit (hereinafter ICU) of the hospital reported to Mrs. Kraus, their supervisor, that Dr. Robert Brandstetter had written on the charts of four patients that he had performed bronchoscopies on them. Dr. Brandstetter, an attending physician who practiced as a pulmonologist or pulmonary consultant, was also employed by the hospital as the Assistant Director of Medicine and Associate Director of its residency program. The nurses told Mrs. Kraus that Dr. Brandstetter had not performed the alleged procedures and/or had not obtained informed consents from the patients or their relatives for the procedures. According to Mrs. Kraus, she verified that the alleged procedures had not been performed and that informed consents had not been obtained or that Dr. Brandstetter had forged signatures on the informed consent forms.

Mrs. Kraus reported the nurses' information to Dr. Frank Iaquinta, the Director of Medicine who was Dr. Brandstetter's superior. She also reported the alleged incidents to the vice-president of the hospital, Mr. Carmen Alecci, since the president of the hospital, Mr. George Vecchione, was absent. Mrs. Kraus reported to Mr. Vecchione in the regular course of her duties. Both Mr. Alecci and Mr. Vecchione testified that Mrs. Kraus acted appropriately and within the normal scope of her duties in reporting what the nurses had told her.

The hospital did not seek to have the alleged incidents investigated by the hospital's Quality Assurance Committee. Rather, it referred the matter to the Medical Board, a body which represents all the physicians of the hospital. The Medical Board formed an ad hoc committee to investigate the alleged incidents. This committee consisted wholly of physicians from the department of medicine and were, therefore, colleagues and subordinates of Dr. Brandstetter. Without interviewing Mrs. Kraus, the nurses, the patients involved, or their relatives, the ad hoc committee prepared a report which absolved Dr. Brandstetter of any wrongdoing. Yet, even that report acknowledged that Brandstetter had not obtained proper informed consents.

The Law Committee of the Board of Governors, the hospital's ruling body, rejected the ad hoc committee's report, noting that the ad hoc committee had not conducted a thorough investigation. The Law Committee then recommended that the matter be referred back to the ad hoc committee to conduct a proper investigation. Thereafter, the Board of Governors referred the matter back to the ad hoc committee. Subsequently, the ad hoc committee prepared an addendum to its report which criticized Dr. Brandstetter for having been "casual" in obtaining the informed consents from the patients and for failing to enter in the log book his use of the bronchoscopy equipment, but it still absolved him of wrongdoing. The Board of Governors accepted the ad hoc committee's report.

In December 1987, the Medical Board held a meeting. Mrs. Kraus had attended the Medical Board meetings ever since she was employed. On this occasion, the President of the Medical Board, Dr. Emil Maffucci, who was also a member of the hospital's Board of Governors, invited Dr. Brandstetter to speak at the meeting. In his speech, Brandstetter referred to "frightening actions", "witch hunts" and irresponsible use of power by individuals in senior management, a clear reference to Mrs. Kraus.

Thereafter, also in December 1987, based on an anonymous telephone call, the New York State Department of Health conducted an investigation of the hospital, which resulted in the...