Brown v. Lafontaine-Rish Medical Associates, 7699.

• Decision Date: 19 October 2006
• Docket Number: 7699.
• Citation: 33 A.D.3d 470,822 N.Y.S.2d 527,2006 NY Slip Op 07579
• Parties: MARGARET BROWN, as Administratrix of the Estate of JOEL CUNNINGHAM, Deceased, Respondent, v. LAFONTAINE-RISH MEDICAL ASSOCIATES et al., Defendants, and ARTHUR KISSEL, Appellant.
• Court: New York Supreme Court — Appellate Division

33 A.D.3d 470

822 N.Y.S.2d 527

2006 NY Slip Op 07579

MARGARET BROWN, as Administratrix of the Estate of JOEL CUNNINGHAM, Deceased, Respondent, v. LAFONTAINE-RISH MEDICAL ASSOCIATES et al., Defendants, and ARTHUR KISSEL, Appellant.

7699.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 19, 2006.

Judgment, Supreme Court, Bronx County (Douglas McKeon, J.), entered October 25, 2004, after a jury trial, in an action for wrongful death arising out of an outpatient liposuction procedure performed at defendant clinic, awarding plaintiff estate compensatory damages in the principal amount of $368,086, and, insofar as appealed from, holding defendant-appellant clinic owner vicariously liable for the malpractice of defendants physicians, and awarding plaintiff punitive damages against appellant in the principal amount of $5 million, modified, on the facts, to vacate the award of punitive damages and direct a new trial thereon, and otherwise affirmed, without costs, unless, within 30 days after service of a copy of this order with notice of entry, plaintiff stipulates to reduce the award of punitive damages to the principal amount of $2.5 million, and to entry of an amended judgment in accordance therewith.

The trial court correctly held appellant vicariously liable, as a matter of law, for the malpractice of defendants anesthesiologist and surgeon. The record established, inter alia, that the cause of death was complications of anesthesia and failure to have a working laryngoscope in the operating room, that appellant founded the clinic, and, as a principal thereof, interviewed, hired and paid its doctors and effectively controlled all aspects of its administration, and that the decedent did not seek out any physicians but rather selected the clinic, which advertised itself as a premier cosmetic surgery clinic and assigned physicians to particular procedures. Such evidence demonstrated an ostensible agency between the clinic and its physicians regardless of whether the physicians were independent contractors or employees of the clinic (see Welch v Scheinfeld, 21 AD3d 802, 808-809 [2005]).

Punitive damages were properly submitted to the jury upon a record containing ample evidence of reprehensible conduct evincing a gross indifference to patient care (see Graham v Columbia Presbyt. Med. Ctr., 185 AD2d 753 [1992]; Dahlke v Frankel, 267 AD2d 54 [1999]; Figueroa v Flatbush Women's Servs., 201 AD2d 613, 614 [1994]). The clinic represented that it was affiliated with world-renowned surgeons, when in reality it did not verify physicians' credentials. The clinic fraudulently billed insurance companies for procedures that were not performed or were cosmetic in nature. Defendant anesthesiologist was allowed to work independently at the clinic despite restrictions on her license requiring that she be supervised. Indeed, the conclusion of the medical examiner was that the decedent died from complications from general and local anesthesia. Defendant surgeon never met with the decedent, did not obtain consent to the surgery, and was allowed to fill in for another doctor at the last minute after the decedent was already under a general anesthesia. When the decedent's blood pressure and heart rate dropped precariously following surgery, there was no functioning laryngoscope in the operating room with which to reintubate him.

However, in conducting the de novo review of the punitive damages award pursuant to the applicable principles set out in State Farm Mut. Automobile Ins. Co. v Campbell (538 US 408, 418 [2003]), we find the award to be excessive. Certainly appellant's conduct, which was sufficiently reprehensible and reckless resulted in the decedent's physical harm and death. However, the award of $5 million is unwarranted and should be reduced to $2.5 million.

We have considered appellant's remaining arguments and find them to be without merit.

Concur — Mazzarelli, J.P., Saxe, Nardelli and Sweeny, JJ....