Gruntz v. Deepdale General Hosp.

• Decision Date: 23 July 1990
• Parties: Kenneth GRUNTZ, etc., Appellant, v. DEEPDALE GENERAL HOSPITAL, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 623

558 N.Y.S.2d 623

163 A.D.2d 564

Kenneth GRUNTZ, etc., Appellant, v. DEEPDALE GENERAL HOSPITAL, et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 23, 1990.

Washor, Greenberg & Washor, New York City (Harvey L. Greenberg, on the brief), for appellant.

Deegan & Scibilia, Hempstead (Marian C. Rice and Robert J. Aurigema, of counsel), for respondent Deepdale General Hosp.

Morris & Duffy, New York City (Patricia D'Alvia and Edward Rimland, of counsel), for respondent Frank Cole.

Before KOOPER, J.P., and HARWOOD, BALLETTA and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, inter alia, to recover damages for wrongful death, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (LeVine, J.), entered March 29, 1988, as upon a ruling granting the motion of the defendant Deepdale General Hospital made at the close of the plaintiff's case to dismiss the complaint insofar as it is asserted against it for failure to make out a prima facie case, and upon a jury verdict in favor of the defendant Frank Cole, is in favor of the defendants Deepdale General Hospital and Frank Cole and against the plaintiff.

ORDERED that the judgment is reversed insofar as appealed from, on the law and the facts, and the plaintiff is granted a new trial (1) of his cause of action against the defendant Deepdale General Hospital and (2) of his cause of action against Frank Cole on the issue of negligent post-operative monitoring, diagnosing and treating of the decedent, with costs to abide the event of the new trial.

In January 1982 the decedent was admitted to the defendant Deepdale General Hospital for gall bladder surgery, but suffered complications and was treated post-operatively by various physicians in Deepdale General Hospital's intensive care unit. She died some two months after her admission, allegedly due to complications resulting from the surgery. Her administrator thereafter commenced a wrongful death action against, inter alia, Deepdale General Hospital and the surgeon who performed the operation, Dr. Frank Cole. The plaintiff alleged, inter alia, that the post-operative care provided to the decedent by Dr. Cole and others was contrary to good and accepted medical practice, and further, that Dr. Cole had performed an unnecessary surgical procedure. Subsequent to the completion of the plaintiff's case, the Supreme Court granted the motion of the defendant Deepdale General Hospital to dismiss for failure to establish a prima facie case. The trial then proceeded with Dr. Cole as the only defendant. After the close of testimony, the plaintiff's counsel moved for a mistrial, arguing that, by erroneously dismissing the complaint insofar as it is asserted against the defendant Deepdale General Hospital, the court had, in effect, permitted the defendant Cole to escape liability by laying blame on staff associated with Deepdale General Hospital. The motion was denied. The jury ultimately found for Dr. Cole. On appeal, the plaintiff argues, inter alia, that the court erred in granting the motion of Deepdale General Hospital to dismiss. We agree.

It is well settled that a motion to dismiss for failure to establish a prima facie case should only be granted if there is no rational process by which a jury could find for the plaintiff and against the moving defendant upon the evidence presented (see, Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809; Colozzo v. LoVece, 144 A.D.2d 617, 618, 534 N.Y.S.2d 701). Viewing the plaintiff's evidence in the light most favorable to the plaintiff and resolving all questions of credibility in his favor (see, Monahan v. Weichert, 82 A.D.2d 102, 105, 442 N.Y.S.2d 295), we find that there was sufficient evidence adduced from which a reasonable person might conclude that Deepdale General Hospital was negligent and that its negligence was a proximate cause of the decedent's death.

In this respect, there was testimony from the plaintiff's expert, Dr. William Stahl, who offered his opinion that the post-operative monitoring and treatment provided to the decedent at Deepdale General Hospital was contrary to good and accepted medical practice. Specifically, Dr. Stahl stated, inter alia, that subsequent to the decedent's surgery, her blood gas levels were indicative of severe metabolic acidosis caused by low blood flow due to low blood volume. According to Dr. Stahl, the decedent's condition called for careful monitoring by the hospital intensive care staff and attending physicians so that the proper course of treatment could be immediately undertaken. It was Dr. Stahl's opinion based on the available records, that the appropriate procedure was (1) the immediate insertion of a Swan-Ganz catheter, which would have facilitated the monitoring of the decedent's cardiac function, and (2) the reinflusion of fluids. Dr. Stahl testified that the actions taken at this juncture by the attending physicians, which was, inter alia, the administration of sodium bicarbonate to reduce blood gases, was "totally contrary to accepted medical practice". Dr. Stahl also indicated that, insofar as the available records disclosed, the sodium bicarbonate had been administered prior to the institution of proper monitoring procedures. We note in this respect, that the defendant hospital failed to produce the nurses' daily "flow charts", in which detailed notations of the decedent's post-operative care were recorded. It is well settled that an unfavorable inference may be drawn when a party fails to produce evidence which is within its control and which it is naturally expected to produce (cf., Noce v. Kaufman, 2 N.Y.2d 347, 161 N.Y.S.2d 1, 141 N.E.2d 529; Ausch v. St. Paul Fire & Mar. Ins. Co., 125 A.D.2d 43, 48, 511 N.Y.S.2d 919; United States Fire Ins. Co. v. Commodore Mfg. Corp., 108 A.D.2d 621, 622, 485 N.Y.S.2d 77; Richardson, Evidence, § 92 [Prince 10th ed]; 1 NY PJI 1:77).

Viewing the foregoing in a light most favorable to the plaintiff, and resolving all issues of credibility in her favor (see, Colozzo v. LoVece, supra; Alberti v. St. John's Espiscopal Hospital-Smithtown, 116 A.D.2d 612, 497 N.Y.S.2d 701), we find that there was sufficient evidence adduced from which a reasonable person might conclude that the acts or omissions attributable to Deepdale General Hospital constituted a departure from accepted standards of medical care in the community and that this departure proximately contributed to the decedent's death (see, Colozzo v. LoVece, supra ).

We further conclude that, under the circumstances presented, it would be improper to exclude Dr. Cole from any retrial of the action insofar as the issues relating to negligent post-operative care are concerned (see, Braun v. Rycyna, 100 A.D.2d 721, 722, 473 N.Y.S.2d 627; Nicholas v. Reason, 84 A.D.2d 915, 916, 447 N.Y.S.2d 55). A principal theory of liability advanced by the plaintiff against all of the defendants was that the...