Khandhar v. Elfenbein
| Decision Date | 03 September 1991 |
| Docket Number | No. 1690,D,1690 |
| Citation | 943 F.2d 244 |
| Parties | Jayant KHANDHAR, Jyoti Khandhar, Plaintiffs-Appellants, v. Joseph Charles ELFENBEIN, M.D. and James Richard Dickson, M.D., Defendants-Appellees. ocket 91-7211. |
| Court | U.S. Court of Appeals — Second Circuit |
David P. Kownacki, New York City, for plaintiffs-appellants.
Jeffrey M. Feldman, Fishkill, N.Y. (Feldman & Kleidman, Fishkill, N.Y. and Mead, Dore & Voute, P.C., White Plains, N.Y., of counsel) for defendants-appellees.
Before CARDAMONE, MINER and MAHONEY, Circuit Judges.
Plaintiffs-appellants Jayant Khandhar ("Khandhar") and Jyoti Khandhar ("Mrs. Khandar") (collectively, "appellants") appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Conboy, J.) in favor of defendants-appellees Dr. Joseph Charles Elfenbein and Dr. James Richard Dickson (collectively, "appellees"). Appellants commenced this medical malpractice action to recover damages for injuries sustained by Khandhar as a result of a surgical procedure believed to have been performed negligently. The surgery was required to remove two herniated discs caused by an automobile accident. Khandhar first recovered $20,000 for the injuries he sustained in the accident. This recovery came in the form of a settlement with the owner and driver of the automobile that struck the vehicle Khandhar was driving.
On appellees' motion for summary judgment, the district court held that the injuries for which recovery was sought in the action at bar were the same injuries for which Khandhar already had recovered an additional $40,000 in an arbitration conducted pursuant to the underinsured motorist provision of his insurance policy. Because the court found an identity of issues, it held that Khandhar was collaterally estopped Khandhar contends that the district court erred in finding an identity of issues because the damages resulting from the surgery were not known to Khandhar, let alone addressed and determined, during the arbitration. He maintains that preclusion was inappropriate in light of the discovery of new evidence subsequent to the arbitration. We agree with Khandhar's arguments and conclude that the district court erred in granting summary judgment.
from maintaining a claim of medical malpractice in federal court.
On June 20, 1986, Khandhar was injured in an automobile accident in Pelham, New York. As a consequence of that accident, he sustained injuries to his lower back and sought the medical attention of appellees. After initial tests and a determination by appellees that Khandhar had herniated discs--one between the fourth and fifth lumbar vertebrae and another between the fifth lumbar vertebrae and the first sacral vertebrae--appellees performed a surgical procedure known as a laminectomy on Khandhar at United Hospital in Portchester, New York. Because pain persisted after the laminectomy, Khandhar sought additional medical attention from other physicians at St. Francis Hospital in Pittsburgh, Pennsylvania.
Khandhar commenced an action against the automobile owner, Jose Meza, and the driver, Anna Pinilla, and recovered a total of $20,000 in settlement from their respective insurers. That amount represented the maximum amount of liability insurance coverage available.
Khandhar's insurance policy, issued by the State Farm Insurance Company ("State Farm"), included a provision for underinsured motorist coverage. In accordance with that provision, Khandhar initiated an arbitration proceeding to recover additional compensation for his injuries by filing a request for arbitration with the American Arbitration Association. On December 2, 1988, an arbitration proceeding was conducted.
At the arbitration, Khandhar sought recovery for "pain and suffering associated with his accident and ... surgery and various tests administered upon him as a result of this accident" and for "the permanency of the problems caused by the accident which remain even after surgery was performed." Khandhar testified about the accident, and various medical documents were introduced as exhibits in the arbitration. No expert testimony was offered to explain or interpret the documents. On February 23, 1989, the arbitrator awarded $40,000 to Khandhar. Believing that amount to be inordinately low, Khandhar requested an upward modification of the award. The arbitrator denied the request, and the arbitral award was confirmed by the New York State Supreme Court, Westchester County, on August 4, 1989.
Khandhar commenced a diversity action against Dr. Elfenbein, Dr. Dickson and United Hospital on June 13, 1989, claiming damages arising from the alleged medical malpractice of appellees, who performed the surgical procedure. Apparently, appellees diagnosed a pathology in the disc between the fourth and fifth lumbar vertebrae (L4-L5 level) and the disc between the fifth lumbar vertebrae and the first sacral vertebrae (L5-S1 level). However, they operated on the disc between the third and fourth lumbar vertebrae (L3-L4 level). The claims against United Hospital were discontinued in February of 1990. Although not present in the car at the time of the accident, Mrs. Khandhar joined in the suit, seeking damages for loss of her husband's services.
During pre-trial discovery, Khandhar was examined by Dr. Lawrence Kaplan. In his report, Dr. Kaplan noted that x-rays revealed the performance of a laminectomy at the L3-L4 level instead of at the L4-L5 and L5-S1 levels, which previously had been diagnosed as pathological. Dr. Kaplan was of the opinion that a second surgery would be necessary to correct the pathology remaining at the L5-S1 level.
Unaware of the arbitration award until after deposing Khandhar in this action, appellees moved for the addition of two affirmative After comparing the claims made in arbitration to the claims made in the action at bar, the court found that Khandhar "seeks to recover for virtually the same injuries in this litigation as were sought, and necessarily decided, in the arbitration." The court found an identity of issues in the "value of the injuries claimed" and stated that Khandhar "has already been compensated for [the] same." Rejecting the assertion that Khandhar did not have a full and fair opportunity to present the issues in the arbitration, Judge Conboy granted summary judgment in favor of appellees. The motion to dismiss Mrs. Khandhar's claim for lack of subject matter jurisdiction was denied. It was based on appellees' contention that, upon dismissal of Khandhar's claims, the amount in controversy requirement would not be met with respect to Mrs. Khandhar's claim. However, her claim later was dismissed with prejudice, and a final judgment in the action was entered on February 7, 1991. This appeal followed.
defenses--issue preclusion and lack of subject matter jurisdiction--and for summary judgment on the basis of those affirmative defenses. Because Khandhar responded only to the motion for summary judgment without opposing the motion to add the affirmative defenses, the district court granted the motion to amend the answer to include the pair of affirmative defenses. The court then proceeded to consider whether summary judgment was appropriate on either of the two grounds
Khandhar contends that the district court erred in finding that his malpractice claim was precluded and therefore erred in dismissing his complaint on the summary judgment motion. Because the injuries resulting from the surgery were unknown at the time of the arbitration, he asserts that the issue of the value of those injuries could not have been presented to and determined at that proceeding, as the district court found.
Recognizing "that a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered," Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); see also Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980), the district court examined New York law to determine whether Khandhar's federal action was precluded by the prior confirmed arbitral award. Under New York law, "[t]he doctrine of collateral estoppel [bars] a party from relitigating 'an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point.' " Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 482 N.E.2d 63, 67, 492 N.Y.S.2d 584, 588 (1985) (citation omitted); see also Boorman v. Deutsch, 152 A.D.2d 48, 53, 547...
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