"jane Doe v. Mohan Sharma, M.D., Hita Sharma, M.D., Caring Med., LLC
| Decision Date | 01 October 2018 |
| Docket Number | 1324/14 |
| Citation | 89 N.Y.S.3d 548,62 Misc.3d 627 |
| Parties | "Jane DOE", Plaintiff, v. Mohan SHARMA, M.D., Hita Sharma, M.D., Caring Medical, LLC and Sukhdata, LLC, Defendants. |
| Court | New York Supreme Court |
Leonard F. Lesser, Esq., Simon Lesser, PC, 355 Lexington Avenue, 10th Floor, New York, NY10017, 212-599-5455, 2125995459@fax.nycourts.gov, Attorney for Plaintiff.
Matthew J. Conroy, Esq., Schwartz Law, 666 Old Country Road, 9th Floor, Garden City, NY11501, 516-745-1122, Attorney for M. Sharma & Caring Medical.
Steven F. Goldstein, Esq., One Old Country Road, Ste. 318, Carle Place, NY11514, 516-873-0011, 5168730120@fax.nycourts.gov, Attorneys for Hita Sharma.
This motion by the defendants Mohan Sharma, M.D. and Caring Medical, LLC (defendants) for an order pursuant to CPLR 4404 (a) setting aside the jury verdict in this case or, in the alternative, an order setting aside the damages awarded to the plaintiffs is determined as provided herein. Cross-motion by the plaintiff for an order pursuant to 22 NYCRR 130-1.1 (a) sanctioning the defendants for frivolous conduct and holding them liable for the costs incurred by the plaintiff in opposing this motion is determined as provided herein.
In this highly unusual case, the plaintiff has advanced five causes of action: negligent retention and supervision of the defendant Mohan Sharma; assault, battery and endangerment; intentional; negligent infliction of emotional distress; professional negligence and malpractice. This action was tried before a jury for seven days. The jury found the defendant and his practice, defendant Caring Medical, LLC, liable. The jury found (1) that the defendant Mohan Sharma departed from "the accepted standards of medical practice by practicing medicine while impaired by a cognitive disability;" (2) that his departure was a substantial factor in bringing about the plaintiff's injuries; (3) that Caring Medical, LLC was negligent in permitting the defendant to practice medicine while impaired by a cognitive disability; and (4) that Caring Medical's negligence was also a substantial factor in bringing about the plaintiff's injuries. Mohan Sharma was found 70% at fault and Caring Medical was found 30% at fault. The plaintiff was awarded $700,000 for past pain and suffering and $300,000 for future pain and suffering for the upcoming ten years. Mohan Sharma and Caring Medical, LLC presently ask this court to set aside the jury's findings as against the weight of the evidence.
The plaintiff's claims arose from an incident occurring while the plaintiff was in defendant Mohan Sharma's medical office along with her grandmother to receive certain test results. It is undisputed that during this visit the defendant Mohan Sharma took his penis out of his pants, masturbated and ejaculated on the plaintiff Jane Doe. The plaintiff, who suffers from intellectual disabilities, testified in sum that she and her grandmother had gone to the defendant's office for a scheduled appointment on the day in question to obtain the results of urinary and blood tests and to have a bug bite on her grandmother's arm examined. They were both brought into the examining room, which was a usual practice for them when they saw the defendant. The defendant had the plaintiff's grandmother sit on the examination table facing the wall while he examined her back with a stethoscope. The plaintiff testified that he then approached her and stuck out his tongue and then "started unzipping his pants and took his penis out." She testified that "he was trying to make [her] force of touching him and doing disgusting things to [her] and he eventually ‘semened’ on [her] pants and on the floor." She further testified that she was able to take a video of his actions by pressing "record" on her phone. That video was shown to the jury. It shows the defendant exposing his penis, masturbating in front of the plaintiff, gesturing to her to touch his penis and to put her mouth on it.
The defendant Mohan Sharma maintains that the jury's finding that he departed from accepted medical standards with respect to his treatment of the plaintiff must be set aside because his conduct did not constitute "medical treatment" as it was not related to a "crucial element of diagnosis and treatment." In addition, the movant maintains that the damages awarded were excessive in view of the evidence as well as in light of verdicts awarded for comparable events.
"A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted ‘only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party’ " ( Previtera v. Nath , 164 A.D.3d 848, 82 N.Y.S.3d 562 [2d Dept. 2018], quoting Tapia v. Dattco, Inc ., 32 A.D.3d 842, 844, 821 N.Y.S.2d 124 [2d Dept. 2006], citing Cohen v. Hallmark Cards , 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ; Gaspard v. Aronoff , 153 A.D.3d 795, 796, 61 N.Y.S.3d 240 [2d Dept. 2017] ). "[A] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" ( Vittiglio v. Gaurino , 100 A.D.3d 987, 988, 954 N.Y.S.2d 473 [2d Dept. 2012], citing Lolik v. Big V Supermarkets , 86 N.Y.2d 744, 745-746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ; Nicastro v. Park , 113 A.D.2d 129, 130, 495 N.Y.S.2d 184 [2d Dept. 1985] ). Indeed, "[a] motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise" ( Allen v. Uh , 82 A.D.3d 1025, 1025, 919 N.Y.S.2d 179 [2d Dept. 2011], citing Matter of De Lano , 34 A.D.2d 1031, 1032, 311 N.Y.S.2d 134 [3d Dept. 1970], affd 28 N.Y.2d 587, 319 N.Y.S.2d 844, 268 N.E.2d 642 [1971] ; Rodriguez v. City of New York , 67 A.D.3d 884, 885, 889 N.Y.S.2d 220 [2d Dept. 2009] ; Gomez v. Park Donuts , 249 A.D.2d 266, 267, 671 N.Y.S.2d 103 [2d Dept. 1998] ). "The trial court must decide whether substantial justice has been done, and must look to common sense, experience, and sense of fairness in arriving at a decision" ( Allen v. Uh , 82 A.D.3d at 1025, 919 N.Y.S.2d 179, citing Micallef v. Miehle Co., Div. of Miehle-Goss Dexter , 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [1976] ; Bush v. International Bus. Machs. Corp ., 231 A.D.2d 465, 647 N.Y.S.2d 468 [1st Dept. 1996] ).
It is settled that "[t]o establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) that the defendant deviated from accepted standards of medical practice and (2) that such deviation proximately caused the plaintiff's injuries" ( Previtera v. Nath , 164 A.D.3d at 850, 82 N.Y.S.3d 562, citing Gaspard v. Aronoff , 153 A.D.3d at 796, 61 N.Y.S.3d 240 ; Castro v. New York City Health & Hosps. Corp ., 74 A.D.3d 1005, 1006, 903 N.Y.S.2d 152 [2d Dept. 2010] ). "In this case, the plaintiff sought to recover damages for medical malpractice and, thus, was required to prove that the defendant's deviation from good and accepted medical practice proximately caused her injuries" ( Dupree v. Giugliano , 87 A.D.3d 975, 976, 929 N.Y.S.2d 305 [2d Dept. 2011], aff'd as mod, 20 N.Y.3d 921, 958 N.Y.S.2d 312, 982 N.E.2d 74 [2012], citing Alvarez v. Gerberg , 83 A.D.3d 974, 975, 922 N.Y.S.2d 183 [2d Dept. 2011] ; Stukas v. Streiter , 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 [2d Dept. 2011] ; Myers v. Ferrara , 56 A.D.3d 78, 83, 864 N.Y.S.2d 517 [2d Dept. 2008] )." ‘The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts’ " ( Fragosa v. Haider , 17 A.D.3d 526, 526-27, 793 N.Y.S.2d 161 [2d Dept. 2005], citing Smith v. Pasquarella , 201 A.D.2d 782, 783, 607 N.Y.S.2d 489 [3d Dept. 1974], quoting Miller v. Albany Med. Ctr. Hosp ., 95 A.D.2d 977, 978, 464 N.Y.S.2d 297 [3d Dept. 1983] ; cf. Evangelista v. Zolan , 247 A.D.2d 508, 509-510, 669 N.Y.S.2d 325 [2d Dept. 1998] ).
Generally, "an alleged negligent act constitutes medical malpractice when it can be characterized as a ‘crucial element of diagnosis and treatment’ and ‘an integral part of the process of rendering medical treatment to [the plaintiff]’ " ( Spiegel v. Goldfarb , 66 A.D.3d 873, 874, 889 N.Y.S.2d 45 [2d Dept. 2009], quoting Bleiler v. Bodnar , 65 N.Y.2d at 72, 489 N.Y.S.2d 885, 479 N.E.2d 230 ; see also, Weiner v. Lenox Hill Hosp ., 88 N.Y.2d 784, 788, 650 N.Y.S.2d 629, 673 N.E.2d 914 [1996] [] ). However, a physician's conduct can be malpractice "where [it] constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment" ( Gross v. Kurk , 224 A.D.2d 582, 582, 639 N.Y.S.2d 711 [2d Dept. 1996] ; see also , 1B NY PJI3d 2:150 at 49 [2018]; Scott v. Uljanov , 74 N.Y.2d 673, 543 N.Y.S.2d 369, 541 N.E.2d 398 [1989] []; Bleiler v. Bodnar , 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230 [1985] ; Bazakos v. Lewis , 12 N.Y.3d 631, 634, 883 N.Y.S.2d 785, 911 N.E.2d 847 [2009] ). Significantly, "[i]n distinguishing whether conduct may be deemed malpractice or negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached (see ...
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...for sex abuse by a teacher that spanned a period of four years. In what appears to by an outlier, the court, in "Jane Doe" v Sharma (62 Misc 3d 627 [Sup Ct, Nassau County 2018]) denied a defendant's post-trial motion to set aside a $700,000 award in favor of the plaintiff and against her ph......