Cramer v. Benedictine Hospital

• Citation: 754 N.Y.S.2d 414,301 A.D.2d 924
• Court: New York Supreme Court Appellate Division
• Decision Date: 23 January 2003
• Parties: STEPHEN CRAMER, as Administrator of the Estate of WILLIAM E. CRAMER, Deceased, Respondent,<BR>v.<BR>BENEDICTINE HOSPITAL, Defendant and Third-Party Plaintiff-Appellant.<BR>ALEXANDER MATAS et al., Third-Party Defendants-Respondents.

301 A.D.2d 924

754 N.Y.S.2d 414

STEPHEN CRAMER, as Administrator of the Estate of WILLIAM E. CRAMER, Deceased, Respondent,

v.BENEDICTINE HOSPITAL, Defendant and Third-Party Plaintiff-Appellant.

ALEXANDER MATAS et al., Third-Party Defendants-Respondents.

Kane, J.

Decided January 23, 2003.

Crew III, J.P., Carpinello, Mugglin and Rose, JJ., concur.

Kane, J.

On April 1, 1995, William E. Cramer (hereinafter decedent), a profoundly retarded 30-year-old male who resided in a group home, was taken by ambulance to defendant's emergency room in the City of Kingston, Ulster County, after allegedly choking on a corn cob that he swallowed, which he had managed to grab from the kitchen garbage. Decedent arrived at the emergency room, "drooling, [and] spitting large amounts of fluid and saliva" and was seen and examined by third-party defendant Alexander Matas. After several unsuccessful attempts to obtain a gastrointestinal consult, third-party defendant Govind P. Chaturvedi, an ear, nose and throat specialist, examined decedent. Chest X rays were taken and decedent was given a barium swallow (esophagram).^[1] Matas examined the results of the esophagram, but found "no obstruction." Although a radiologist was on call that evening, he was not contacted to read decedent's X ray.

Several hours later, decedent was still "spitting up fluids," but nevertheless was discharged home. The discharge orders contained instructions for a liquid and soft food diet for decedent for two to three days and directed that he be seen by his own physician. Decedent was to return to the emergency room if new symptoms developed or if the condition worsened and decedent's doctor could not be reached. The discharge instructions further noted that a final reading of decedent's X rays would be made the next morning and he would be notified of any discrepancy, if found. Upon reading the X rays the following morning, the radiologist agreed with the preliminary interpretation of "no obstruction," but suggested the possibility of a nonobstructing foreign body in the distal esophagus. However, no one at decedent's group home was called with these results.

On April 5, 1995, decedent was admitted to defendant hospital with complaints of lethargy, vomiting and abdominal pain. On April 6, 1995, decedent underwent an exploratory laparotomy revealing perforation of the distal end of the small bowel, believed to be caused by a chicken bone located near the perforation. The hole in the intestine caused fecal contamination which ultimately led to multiple organ failure. Decedent lapsed into a coma from April 6, 1995 until April 11, 1995, at which point he became alert until lapsing back into a coma five days later. He died April 17, 1995.

Plaintiff commenced this medical malpractice action on April 16, 1997, alleging that defendant was negligent in the care and treatment of decedent. Defendant waited to commence the third-party action against Matas, Chaturvedi and third-party defendant Peter Bang^[2] until December 2000, approximately six weeks after the note of issue and certificate of readiness had been filed. At a January 2, 2001 pretrial conference, a trial date was scheduled for October 15, 2001. By order dated September 11, 2001, Supreme Court granted plaintiff's application to sever the third-party action.^[3] Following a trial of the main action, the jury found defendant liable for medical malpractice and awarded decedent's estate $1 million for decedent's pain and suffering. Defendant's motion to set aside the verdict was denied. Defendant appeals from Supreme Court's order severing the third-party action, from the jury verdict in favor of plaintiff, and from Supreme Court's denial of its motion to set aside the verdict.

Initially, we reject defendant's argument that Supreme Court erred in granting a severance. "Severance, under CPLR 603, is a matter of judicial discretion which will not be disturbed on appeal absent an abuse of discretion or prejudice to a substantial right of the party seeking severance" (Finning v Niagara Mohawk Power Corp., 281 AD2d 844, 844 [citations omitted]). Defendant was dilatory in waiting more than three years to commence the third-party action since it had long been aware of the identities of the third-party defendants and the factual underpinnings to its claim that plaintiff's injuries resulted from the alleged negligent care rendered by third-party defendants. Once the third-party action was commenced, defendant was less than diligent in pursuing discovery and scheduling depositions. In fact, it appears that no fixed date had been established for depositions in the third-party action as of September 11, 2001. Generally, the interest of judicial economy would be best served by having a single trial of the main action and the third-party action as they share, inter alia, common principles of law and fact. However, defendant's argument favoring a single trial is greatly eviscerated by the fact that defendant did not immediately perfect an appeal from the order granting severance nor seek a stay of the pending trial, but rather waited until after the trial was held to perfect its appeal from that order. Under these facts, notwithstanding that the negligence claim against defendant and the indemnification claim against third-party defendants involve common legal principles and facts arising out of the care and treatment of decedent, we find that severance was not an abuse of discretion.

Next, we reject defendant's contention that the disclosure by plaintiff's counsel of certain inadmissible hearsay material from a Department of Health (hereinafter DOH) report warrants reversal. During the trial, a redacted DOH report was entered into evidence.^[4] Initially, with regard to plaintiff's argument that the DOH report should have been admitted in its entirety, we note that, under the circumstances herein, the opinions and conclusions of DOH stated in the report are inadmissible (see Public Health Law § 10 [2]; Maldonado v Cotter, 256 AD2d 1073, 1075). Defendant challenges Supreme Court's failure to exclude certain portions of the DOH report based on lack of probative value and potential prejudicial impact. Defendant objects to, inter alia, a section in the report in which it is claimed that nursing documentation was inadequate. Given that plaintiff's expert testified that the alleged medical deficiencies reflected in the factual statements of the DOH report were not causally related to decedent's death, admission of these statements is harmless error. In addition, it cannot be said that the jury inferred that defendant was negligent based only on these allegedly irrelevant statements, as the record indicates that there was ample properly admitted evidence on which the jury could base its finding (see generally Laguesse v Storytown U.S.A., 296 AD2d 798, 800-801).

Defendant also challenges two occasions during the trial when redacted information from the DOH report was made known to the jury. In the first instance, during cross-examination of defendant's medical expert, plaintiff's attorney placed poster-sized enlargements of the DOH report in the jury's view with large areas of the text, which constituted either express or implicit opinions with respect to the issue of malpractice, redacted as ordered inadmissible by Supreme Court. In contravention of Supreme Court's in limine ruling, plaintiff's counsel asked defendant's medical expert the following questions:

"In your review of that [DOH] report did it also say that there was no written policy in place?"

"For a transfer of a discrepancy from the Radiology Department to the Emergency Department at Benedictine Hospital?"

"And they said that that was a departure from accepted care, didn't they?"

Supreme Court sustained defendant's objection and gave a curative instruction, but denied its motion for a mistrial.

Defendant also objected to the request by plaintiff's counsel of its expert witness on direct to read a section of the DOH report which indicated, in part, that a similar episode of failure to communicate an X-ray discrepancy had been reported in regard to the radiologist who had read decedent's X rays. Shortly thereafter, Supreme Court instructed the jury to disregard "anything else that may relate to any other date than what happened on April 1, 1995 and thereafter in connection with the defendant[]." After the jury was dismissed, the court stated on the record that it "inadvertently neglected to strike as part of [its] ruling" the...