Bertram v. N.Y. Presbyterian Hosp.

• Decision Date: 08 May 2013
• Docket Number: Index No. 103707/2007
• Citation: 2013 NY Slip Op 30988
• Parties: ELLIOT BERTRAM, as father of YAAKOV BERTRAM, and ELLIOT BERTRAM, individually, Plaintiffs v. NEW YORK PRESBYTERIAN HOSPITAL, Defendant
• Court: New York Supreme Court

2013 NY Slip Op 30988

ELLIOT BERTRAM, as father of YAAKOV BERTRAM, and ELLIOT BERTRAM, individually, Plaintiffs v. NEW YORK PRESBYTERIAN HOSPITAL, Defendant

Index No. 103707/2007

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46

DATED: April 19, 2013

FILED: May 8, 2013

DECISION AND ORDER

APPEARANCES:

For Plaintiffs

Eliot M. Wolf Esq.

Wolf & Furman, LLP

For Defendant

Theodore B. Rosenzweig Esq.

McAloon & Friedman, P.C.

LUCY BILLINGS, J.:

Plaintiff child Yaakov Bertram, through and with his father Elliot Bertram, has moved to set aside the jury verdict November 15, 2010, in favor of defendant New York Presbyterian Hospital in this medical malpractice action. C.P.L.R. § 4404(a). Plaintiffs contend that the verdict is contrary to law and to the weight of the evidence due to the conduct of defendant's attorney Theodore Rosenzweig Esq., principally in his cross-examination of plaintiffs' expert pediatric cardiologist Eric Fethke M.D. and in summation.

I. DISCLOSURE ISSUES

Preliminarily, plaintiffs maintain that Mr. Rosenzweig's aspersions on the incompleteness or inadequacy of the trial preparation by plaintiffs' attorney Eliot Wolf Esq. and by Dr. Fethke were especially unwarranted, given defendant's persistent disobedience of court orders to produce its records and eventual production only two weeks before the trial. Insofar as this late production hindered plaintiffs' trial preparation, their remedy was to move to compel the production and to impose penalties for the nonproduction, before filing the note of issue and certificate of readiness placing the action on the trial calendar. C.P.L.R. §§ 3124, 3126. Nevertheless, while defendant was free to expose incompleteness or inadequacies in plaintiffs' trial presentation, through their attorney, expert physician, other witnesses, and documentary or other evidence, aspersions on the professionalism of an adverse attorney or witness were unnecessary. E.g., Smolinski v. Smolinski, 78 A.D.3d 1642, 1643 (4th Dep't 2010); Pagrano v. Murray, 309 A.D.2d 910, 911 (2d Dep't 2003); Dwyer v. Nicholson, 193 A.D.2d 70, 77 (2d Dep't 1993).

II. THE TESTIMONY OF PLAINTIFFS' EXPERT PEDIATRIC CARDIOLOGIST

Dr. Fethke's testimony was essential to plaintiffs' claims. Aside from the testimony by defendant hospital's physicians that indirectly may have exposed their deviation from accepted standards of pediatric care, Dr. Fethke was the sole witness whom plaintiffs presented to delineate directly how the failure of defendant's physicians to remove an arterial line from plaintiffYaakov Bertram's left leg did deviate from the applicable standards. Transcript of Proceedings at 628 (Nov. 9, 2010). He testified that from January 21 to 23, 2005, before the line was moved to plaintiff child's right wrist January 25, 2005, alternative arteries with palpable pulses were available for the line, yet the left leg, based on its lack of pulses, discoloration, and blistering, was exhibiting ischemia and was at risk of vascular injury from the line. Id. at 625-26, 628-30. On each of those January 21 to 23 dates, "every attempt should have been made to find other access and remove the arterial line from the left lower extremity." Id. at 629.

Dr. Fethke explained that, where defendant's medical records showed, through its staff's examination and through its instrumentation, pulses in the child's upper extremities on each January 21 to 23 date, id. at 633, 637-38, in fact

there was another option for the arterial line that was being used to monitor the patient; . . . there should have been an attempt to place another line in that area where the pulses were . . . present so that the other line could be removed in the left lower extremity.

Id. at 633. Based on the presence of pulses in the patient's upper extremities, other indications in defendant's records that the patient's condition was improving, and the highly skilled intensive care setting where the staff were trained in obtaining arterial access, Dr. Fethke concluded that "alternate access in the radial artery or that limb could have been obtained with high probability." Id. at 634-35. He pointed out how defendant's records also showed that the physicians in charge of YaakovBertram's care January 21-23, 2005, were apprised further of the need to move the arterial line as of January 21 by the instructions of three vascular surgeons who directed that the line be moved to an alternative site due to the continuing risk of injury to the patient's left leg. Id. at 658-59.

The three questions to the jury on defendant's professional negligence asked whether those physicians in charge of plaintiff Yaakov Bertram's care January 21, 22, and 23, 2005, deviated from accepted standards of pediatric care by failing even to attempt to start an arterial line at an alternative site or to move the line there. Although the jury answered each of those three questions in the negative and therefore did not reach questions on causation of the plaintiff child's injury, Dr. Fethke also testified how the line deprived the child's left leg of adequate blood supply, creating the environment for an infection that took root in the bone, and ultimately requiring the amputation of his leg. Id. at 626-29.

III. CROSS-EXAMINATION OF PLAINTIFFS' EXPERT BY DEFENDANT'S ATTORNEY

Defendant's attorney cross-examined Dr. Fethke regarding his retention by plaintiffs through an intermediary.

Q Well, it's your understanding that in this case, you were being asked as to whether there was justification to file or commence this lawsuit?

A Through Mr. DiBlasio's communications, yes.

Q So you later found out that that couldn't be further from the truth that, in fact, this case was pending for years and they were trying to find an expert at the 11th hour.

Id. at 668. Before Dr. Fethke answered, plaintiffs' attorney objected, and the court immediately sustained the objection. Although the court did not then instruct the jury to disregard the unanswered question, and Mr. Wolf did not ask for any such instruction, the court did repeat such an instruction at both the opening and the closing of the trial.

Mr. Wolf's further objections to Mr. Rosenzweig's cross-examination concerned his methods. Mr. Rosenzweig interrupted the witness before he finished answering, id. at 663, 708; insisted on a "yes or no" answer where impossible, id. at 665; asked the witness to "read another person's mind," id. at 680; see id. at 702, or about a possibility rather than probability, id. at 740-41; omitted a timeframe, id., at 690; and failed to conform to the prior evidence in formulating a question. Id. at 661-62.

The most serious objectionable method was Mr. Rosenzweig's tendency to intersperse his questions with remarks separate from his questions. E.g., id. at 700, 722, 726-27, 739. The most egregious of these instances was the following:

Q And do you think it would be of some benefit to be fair, assuming you want it to be fair--

MR. WOLF: Objection.

THE COURT: Sustained. The jury will disregard that comment.

. . . .

It's questions only.

MR. WOLF: Your honor, if Mr. Rosenzweig could be cautioned against making those kinds of characterassassinations.

. . . .

THE COURT: He shouldn't need to be so cautioned. Id. at 700-701. Later, the court cautioned Mr. Rosenzweig further, in response to his following remarks, unaccompanied by a question, about the witness' prior testimony:

Q Well, I could have sworn that Mr. Wolf asked you questions that identified the doctors by name and you said yes, in response to the criticism. So, if you are indicating you have no criticism of the doctors, that's fine.

MR. WOLF: Objection, your Honor. I move that that be stricken , and the jury be given an instruction that this is not summation, that gratuitous remarks like that are inappropriate and they should not be put before the jury' without a question.

. . . .

THE COURT: Mr. Rosenzweig, no more of those statements, all right?

MR. ROSENZWEIG: Okay.

THE COURT: . I've instructed you at least a half dozen times, this afternoon alone, forgetting about on prior occasions, confine yourself to questions only and the jury will disregard anything that you say other than what question you pose . . . .

Id. at 726-27.

Plaintiffs' attorney posed no other objections to Mr. Rosenzweig's cross-examination. In particular, no other objections pertained to any questioning about Dr. Fethke's prior service at defendant hospital, his review of its records, or his experience, credentials, or credibility. Mr. Rosenzweig leveled no further "character assassinations" during his cross-examination of Dr. Fethke, reserving them for summation.

IV. COMMENTS BY DEFENDANT'S ATTORNEY IN HIS SUMMATION

While defendant's attorney was permitted to attack Dr. Fethke's credibility, see Chappotin v. Citv of New York, 90 A.D.3d 425, 426 (1st Dep't 2011); Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365 (1st Dep't 1996); Bianco v. Flushing Hosp. Med. Ctr., 79 A.D.3d 777, 779 (2d Dep't 2010); Friedman v. Marcus, 32 A.D.3d 820 (2d Dep't 2006), the attorney was not permitted to do so by relying on facts outside the evidence presented at the trial, let alone facts outside the record that may not even have been true. Nevertheless, Mr. Rosenzweig speculated:

So, . . . a month or two before the trial, three plus years after the lawsuit has begun, Mr. Wolf reaches out to a disgruntled former physician at New York Presbyterian

. . . .

This is not a situation where a doctor is asked to look at a case before it's begun and say, do you think there is merit or no merit. This is a last ditch effort to find somebody who's willing to come to court, to help establish a case. And there is a dramatic difference.

You don't for a moment believe that Dr. Fethke was the first person who was contacted, do you? Or maybe the second or the fifth or the tenth?

Tr. at 1078-79 (Nov. 15, 2010). Only at this point did plaintiffs' attorney object. The court sustained the objection, instructed the jury to disregard the final...