Huertas v. Ameri Line, Inc.
| Decision Date | 26 September 2018 |
| Docket Number | 300148/2015 |
| Citation | 95 N.Y.S.3d 484,63 Misc.3d 171 |
| Parties | Gilberto HUERTAS, Plaintiff(s), v. AMERI LINE, INC. and Francis Ikachi Okolie, Defendant(s). |
| Court | New York Civil Court |
Morrison & Wagner, LLP, New York City, for plaintiff.
Votto & Albee, PLLC, Staten Island, for defendants.
This action involves a motor vehicle collision that occurred on March 1, 2011 at the intersection of Bushwick Avenue and Kossuth Place, in the County of Kings, City and State of New York. The vehicle that was owned and operated by the Plaintiff was hit in the side rear by a vehicle owned by Ameri Line, Inc., and operated by its employee, Gilberto Huertas. The Plaintiff claims to have sustained serious personal injury as a result of the negligent operation of said motor vehicle by the Defendant(s) and commenced this action for recovery of damages.
The summons and complaint were served and filed; issue was joined by service of an answer, and after discovery, a note of issue was filed for trial. It appears that the Plaintiff moved for summary judgment on the issue of liability, and in or about October 23, 2014, the Supreme Court determined that the Defendant was negligent as a matter of law. (It should be noted that neither side has provided the Court with a copy of the Supreme Court order, however, the Defendant does not contest this claim made by the Plaintiff in the instant motion). After several appearances in the Supreme Court, this matter was transferred to the Civil Court pursuant to CPLR § 325(d). As shown in the court record, the original court date was November 24, 2015 and adjourned to the following dates: March 17, 2016, July 25, 2016, December 19, 2016, January 17, 2017, February 5, 2018 and April 19, 2018.
The record further states that on April 5, 2018, the Plaintiff moved by Notice of Motion returnable on April 19, 2018 to preclude the Defendant from introducing into evidence the Consent Order issued by the New York State Board for Professional Medical Conduct (hereinafter referred to as "BPMC") against Dr. Mehran Manouel and any evidence of any disciplinary proceeding against Dr. Mehran Manouel, the orthopedic surgeon, who allegedly performed arthroscopic surgery
on the right knee of the Plaintiff allegedly as a result of the injuries sustained in the automobile accident.
In general, as described in Public Health Law § 230, et seq., the Office of Professional Medical Conduct (hereinafter referred to as "OPMC"), is part of BPMC. It investigates suspected cases of professional misconduct and seeks to issue appropriate disciplinary actions. In many instances, medical professionals that are investigated by the OPMC are granted a right to a full and fair hearing of the accusations brought against them. At the end of such hearings, OPMC imposes disciplinary action, if warranted, based on the evidence. The penalties range from revocation of the medical license, suspension, reprimand and/or fines. Additionally, the OPMC monitors compliance with the disciplinary actions and/or orders.
In this case, in lieu of a full evidentiary hearing, Dr. Mehran Manouel entered into a consent order, to be approved by the BPMC, that provided, in pertinent part, as follows: "I understand that the New York State Board for Professional Medical Conduct (board) has charged me with one or more specifications of professional misconduct, as set forth in a Statement of Charges, marked as Exhibit "A", attached to and part of this Consent Agreement. Exhibit A reflects pending charges in a hearing that has commenced. I assert that I cannot successfully defend against at least one of the acts of misconduct alleged, in full satisfaction of the charges against me, and agree to the following penalty a)...probation for a period of 36 months ;b) "a fine in the amount of $5,000.00"; "continue to be registered with the NYS Education Department and other license requirements under state law".
"Upon adoption of the consent order by the Board, the consent order and all attached exhibits shall be public documents; may be posted on the Department's website, reported to the National Practitioner Date Bank and the Federation of State Medical Boards, and any other entities that the Director of OPMC shall deem appropriate".
Lastly, "[i]n consideration of the value to me of the Board's adoption of this consent agreement, allowing me to resolve this matter without the various risks and burdens of a hearing on the merits, I knowingly waive my right to contest the Consent Order for which I apply, whether administratively or judicially, I agree to be bound by the Consent Order and I ask that the Board adopt this Consent Agreement."
In summary, the statement of charges provide, in relevant part, as follows: Patient A, B, C, D, and E, all males, involved in automobile accidents allegedly underwent "inappropriate" arthroscopy
surgery on their knees, shoulders, and rotator cuffs "without appropriate preoperative workup and without adequate conservative treatment"; "failed to appropriate follow-up post-operatively"; "falsely report and billed for purported surgical procedures with the intent to deceive and failed to maintain records that accurately reflected the evaluation and treatment of the patient." As equally relevant, the other charges assert negligence, incompetence, engagement in fraudulent practices by false reporting, unwarranted test/treatment, and failure to maintain records. Finally, Exhibit "B" sets forth the terms of probation. (No evidence has been presented by either party that the Board adopted the Consent Order, however, the Plaintiff affirms that "the Consent Agreement was accepted by both the State Board and Dr. Manouel").
In his motion, the Plaintiff argues that the Consent Order is not an admission of guilt on any particular charge; "there is no indication as to which charge or charges Dr. Manouel could not successfully defend and accordingly, . (Affirmation Stuart Wagner, Esq. at ¶ 10 - Plaintiff's papers do not contain numbered paragraphs, so the Court counted the number of each paragraph). The Plaintiff relies on Yarborough v. Cattani , 43 Misc. 3d 785, 982 N.Y.S.2d 716 (2014) and Capriano v. Ho, 29 Misc. 3d 952, 908 N.Y.S.2d 552 (2010).
In opposition, the Defendant contends that the OPMC found that Dr. Manouel committed negligence, was incompetent, committed fraud, filed false reports, and performed unwarranted surgery. The Defendant further contends that "...Dr. Manouel was found to have engaged in this conduct on or about the time that he performed the procedure on the plaintiff". (Affirmation of Christopher Albee, Esq., at ¶ 4).
Counsel also claims that "[t]he plaintiff is attempting to deprive the defense of the opportunity to cross examine the witness, by calling a non-treating physician, because of the surgeon's history of committing fraud, negligence and incompetence; the Defendant asserts that the Plaintiff does not want the jury to hear this damaging evidence".
Defendant also argues that it would be unfair for this evidence to be excluded because the jury should be appraised of the findings of the OPMC since "the surgery may not have even been performed". (Affirmation of Christopher Albee, Esq., at ¶ 5). Defendant concludes that the surgery on the Plaintiff was unnecessary; and the Plaintiff was not injured in the accident based on the analysis of the bio-mechanical engineer and the Defendant's expert doctors.
Further Defendants rely on Baragano v. Vaynshelbaum , 2005 NY Slip Op. 30465(U), 2005 WL 6733862 (2005), and Public Health Law Section 10, which states that the investigations performed here against Dr. Manueol is "presumptive evidence of the facts so stated therein and shall be received as such in all courts and places". The Defendants conclude that "plaintiff's proposed expert will be incompetent to testify concerning plaintiff' surgery as the surgeon who performed the procedure, according to the finding of the Department of Health and OPMC, did not perform procedures he claims to have performed". (Affirmation of Christopher Albee, Esq., at ¶ 15).
In reply, the Plaintiff relies on well settled case law which states that it is improper to prove that a person did an act on a particular occasion by showing that he did similar acts on a different, unrelated occasion. Plaintiff also relies on the general proposition that the courts have uniformly held that disciplinary actions against a doctor are inadmissible unless the individual doctor is actually taking the witness stand himself, thereby putting his own credibility and trustworthiness at issue. Plaintiff also claims that the Defendant counsel "wishes to use Manuoel's OPMC records to create an inference that if Dr. Manuoel committed bad acts or misconduct earlier in his medical practice, that this constitutes evidence that he committed similar bad acts in this occasion" (Affirmation Stuart Wagner, Esq. at ¶ 7).
The Plaintiff further asserts that he will call a board-certified surgeon that reviewed the MRI films, treatment and other records, and based on his own medical examination of the Plaintiff, will opine that the injury and treatment was casually related to the accident. The Plaintiff contends that he is under no obligation to designate the treating physician as a trial witness and can without reservation call an expert witness to testify about this surgery and the damages claims in the underlying case.
Plaintiff lastly contends that it is reversible error for this Court to allow the OPMC in evidence "without the treating physician having first placed his credibility into issue as a live trial witness" (...
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