Caruso v. Ne. Emergency Med. Associates

• Decision Date: 30 June 2011
• Citation: 926 N.Y.S.2d 702,85 A.D.3d 1502,2011 N.Y. Slip Op. 05598
• Parties: Thomas P. CARUSO et al., Respondents,v.NORTHEAST EMERGENCY MEDICAL ASSOCIATES, P.C., Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1502

926 N.Y.S.2d 702

2011 N.Y. Slip Op. 05598

Thomas P. CARUSO et al., Respondents,

v.NORTHEAST EMERGENCY MEDICAL ASSOCIATES, P.C., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 30, 2011.

Phelan, Phelan & Danek, L.L.P., Albany (Timothy S. Brennan of counsel), for appellant.

Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondents.Before: PETERS, J.P., LAHTINEN, MALONE JR., KAVANAGH and GARRY, JJ.GARRY, J.

Appeals (1) from an order of the Supreme Court (Reilly Jr., J.), entered February 1, 2010 in Schenectady County, which, among other things, partially granted plaintiffs' cross motion for a directed verdict, (2) from the judgment entered thereon, and (3) from an order of said court, entered April 29, 2010 in Schenectady County, which denied defendant's motion for reargument.

This indemnification case arises from a medical malpractice action that plaintiff Thomas P. Caruso (hereinafter plaintiff) and his wife, derivatively, commenced against Ellis Hospital and emergency room physician Alex Pasquariello as a result of medical care and treatment that plaintiff received on the evening of July 27, 2001. Plaintiff had seen his physician earlier in the day who, concerned by plaintiff's complaint of a persistent headache of varying intensity accompanied by vomiting, directed him to the hospital's emergency room for further evaluation. Plaintiff waited for approximately two hours at the hospital before being seen by Pasquariello, who diagnosed plaintiff with a headache (possibly caused by tension or a migraine), and discharged him. The next day upon her return from work, plaintiff's wife found her husband vomiting and unable to walk. He was then taken by ambulance to a different hospital, and diagnosed with a cerebral hemorrhage. Following emergency surgeries and various complications arising therefrom, plaintiff suffered permanent brain injuries and the loss of his eyesight.

After commencing the medical malpractice action, plaintiffs learned that Pasquariello, an employee of defendant, rendered treatment to plaintiff pursuant to a contract between defendant and the hospital, whereby defendant would supply physicians to provide medical services in the hospital's emergency room. Plaintiffs settled with Pasquariello for $3 million, the full amount available from his insurance policy with Medical Liability Mutual Insurance Company (hereinafter MLMIC). The hospital settled plaintiffs' lawsuit against it ¹ by paying $1 million in cash and assigning any indemnification rights it had against defendant for an amount up to $1 million. Plaintiffs also executed a general release.²

Thereafter plaintiffs, as assignees of the hospital, commenced this action against defendant seeking common-law indemnification in the amount of $1 million.³ MLMIC, which was also defendant's insurance carrier, disclaimed coverage, arguing that plaintiffs waived all claims against defendant when they signed the general release settling the matter against the hospital. Supreme Court, among other things, granted defendant's motion for summary judgment dismissing the complaint and, on appeal, this Court reversed the grant of summary judgment, finding questions of fact as to the parties' intentions with respect to the release of the indemnification claim (54 A.D.3d 524, 529–530, 862 N.Y.S.2d 867 [2008] ).

Following a trial, the jury rendered a verdict in defendant's favor on the issue of whether negligence on the part of the hospital's nursing staff was a proximate cause of plaintiff's injuries, thus defeating the claim for common-law indemnification. Supreme Court had reserved upon and thereafter granted plaintiffs' motion for a directed verdict, setting aside the jury's finding with respect to the proximate cause issue. Defendant's motion to set aside the verdict was denied, as was its later motion to reargue. Supreme Court then entered judgment for plaintiffs in the amount of $1 million, plus interest and disbursements. Defendant appeals from the order and judgment in plaintiffs' favor.⁴

Initially, defendant contends that Supreme Court erred in granting plaintiffs' motion for a directed verdict setting aside the jury's finding of proximate cause with respect to the alleged negligence of the hospital's staff. The verdict sheet asked the jury whether, among other things, the “[h]ospital and its nursing staff deviate[d] from an accepted standard of nursing care during their treatment” of plaintiff and, if so, whether “that deviation [was] a proximate cause of [plaintiff's] injuries.” The jury answered “Yes” to both questions. Defendant seeks to have the jury's finding as to proximate cause reinstated. This would result in dismissal of the action because plaintiffs, as assignees of the hospital, would be barred from recovering on their indemnification claim if the hospital was found liable through active negligence for the underlying claim in any degree ( see Cunha v. City of New York, 12 N.Y.3d 504, 509, 882 N.Y.S.2d 674, 910 N.E.2d 422 [2009] ).

Under CPLR 4401, a directed verdict is “appropriate when, viewing the evidence in a light most favorable to the nonmoving party and affording such party the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant” ( Hytko v. Hennessey, 62 A.D.3d 1081, 1083, 879 N.Y.S.2d 595 [2009] ). “In a medical malpractice action, establishment of a prima facie case requires expert testimony that there was a deviation from accepted standards of medical care and that such deviation was the proximate cause of the injury” ( id. at 1083–1084, 879 N.Y.S.2d 595 [citations omitted]; see Turcsik v. Guthrie Clinic, Ltd., 12 A.D.3d 883, 886, 784 N.Y.S.2d 721 [2004] ). Here, proof establishing the nursing staff's negligence was set forth via the testimony of two experts. Judith Quinn, an emergency department director certified in critical care, opined that the hospital's nurses were negligent in that, among other things, they improperly placed plaintiff in a waiting room set aside for minor injuries, failed to properly document plaintiff's condition and complaints, and did not convey to Pasquariello the fact that plaintiff had been referred to the emergency room by his physician. Barabra Salisbury, a nurse manager, testified that there was relevant documentation that was not included in plaintiff's triage note. Thus, the record amply supported the jury's finding that the hospital's nurses were negligent in their care of plaintiff.

However, we agree with Supreme Court that the proof was deficient with respect to whether the nursing staff's negligence was a proximate cause of plaintiff's injuries. Neither of the two physicians who testified for the parties stated that the nursing staff's alleged negligence was a cause of plaintiff's injuries. In fact, while defendant argues that the two hours that plaintiff spent in a waiting room before he was seen by Pasquariello must have been a factor, defendant's expert physician did not render such an opinion and plaintiffs' expert physician, Joseph Carfi, testified that plaintiff's “devastating injuries” were caused by the 24–hour delay that occurred after plaintiff was discharged from the hospital. While Quinn testified that, in her experience, most physicians would have ordered tests such as a CAT scan or an MRI if a patient had been sent to the emergency room by his or her physician, she also acknowledged that Pasquariello, in his May 2003 deposition, stated that his evaluation and diagnosis of plaintiff would not have changed even if he had been in possession of complete documentation, including the physician referral. Given the absence of expert testimony establishing proximate cause, we conclude that Supreme Court properly granted plaintiffs' motion for a directed verdict ( see Hytko v. Hennessey, 62 A.D.3d at 1084, 879 N.Y.S.2d 595).

Next, we find defendant's challenge to Supreme Court's rulings regarding certain subpoenas to be unavailing. We are unpersuaded that the court abused its discretion by declining to quash a subpoena of the MLMIC claim file, as well as subpoenas served on three of MLMIC's employees, notwithstanding defendant's assertion that the information sought was prepared for litigation related to the underlying medical malpractice action against the hospital and Pasquariello, and, therefore, was not subject to disclosure. The party claiming that privilege bears the burden of “identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” ( Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 648, 783 N.Y.S.2d 85 [2004]; see Claverack Coop. Ins. Co. v. Nielsen, 296 A.D.2d 789, 790, 745 N.Y.S.2d 604 [2002]; see also CPLR 3101[d][2] ). Here, defendant failed to identify any particular document that was privileged, and the affidavits of MLMIC employees only made conclusory statements that their work was prepared in anticipation of litigation. Accordingly, we find no basis to disturb Supreme Court's denial of the motion to quash ( see Bombard v. Amica Mut. Ins. Co., 11 A.D.3d at 648, 783 N.Y.S.2d 85; Claverack Coop. Ins. Co. v. Nielsen,...