Lasher v. Albany Mem'l Hosp.

Decision Date10 May 2018
Docket Number524909
Citation161 A.D.3d 1326,77 N.Y.S.3d 544
Parties Christopher LASHER et al., as Legal Guardians of Jennifer Lasher Tinsmon, Appellants, v. ALBANY MEMORIAL HOSPITAL et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Featherstonhaugh, Wiley & Clyne, LLP, Albany (James Featherstonhaugh of counsel), for appellants.

Maguire Cardona, PC, Albany (Richard R. Maguire of counsel), for Albany Memorial Hospital and another, respondents.

Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for Linda S. Olsen and another, respondents.

Before: Devine, J.P., Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeals from two judgments of the Supreme Court (Connolly, J.), entered January 17, 2017 and February 1, 2017 in Albany County, upon a verdict rendered in favor of defendants.

On February 17, 2011, Jennifer Lasher Tinsmon spent the evening with her boyfriend, Daniel Despart, with the two ultimately returning to Despart's home around midnight. At some point thereafter, Tinsmon allegedly exited the residence to retrieve items from her car. According to Despart, Tinsmon did not return for several minutes and, when he went outside to investigate, he discovered Tinsmon lying unconscious on the ground. Despart carried Tinsmon inside and then proceeded to call his parents to help transport her to the nearest hospital. Tinsmon arrived at defendant Albany Memorial Hospital, a subsidiary of defendant Northeast Health, Inc. (hereinafter collectively referred to as AMH), shortly before 3:00 a.m. on February 18, 2011, still unconscious. There, Tinsmon was treated by defendant Linda Olsen, an emergency room physician and an employee of defendant Emergency Medicine Physicians of Albany County, PLLC (hereinafter collectively referred to as the Olsen defendants). A CT scan of Tinsmon's brain showed severe brain injuries, and she was transported to Albany Medical Center Hospital (hereinafter AMCH) for further treatment at 5:19 a.m. Tinsmon ultimately suffered permanent brain damage and now requires around-the-clock care.

Plaintiffs, Tinsmon's parents, commenced this medical malpractice action in May 2013 alleging, among other things, that Olsen failed to timely consult a neurosurgeon about Tinsmon's injuries and failed to timely arrange for her transfer to AMCH.1 Following joinder of issue and extensive discovery, the matter proceeded to a jury trial, where the main factual issues surrounded the timing of the sequence of events that occurred after Tinsmon was admitted to AMH. Approximately one week into the trial, plaintiffs attempted to call a geographical information systems (hereinafter GIS) expert to present testimony regarding "the location and function of cell phone towers, their receipt of data from individual cell phones, and the operation of that system," for the purpose of explaining the cell phone records of Marie Stark, a respiratory therapist called to help transport Tinsmon to AMCH. Defendants immediately objected and moved to preclude plaintiffs from offering such expert testimony, citing plaintiffs' failure to provide the required expert disclosure (see CPLR 3101[d][1][i] ) and asserting undue prejudice as a result of the significant delay in doing so. Supreme Court granted the motion. Following its presentation of evidence, AMH moved pursuant to CPLR 4401 to dismiss any claims of direct negligence against it. Supreme Court granted the application, and AMH remained in the trial on the basis of its potential vicarious liability for Olsen's alleged negligence (see Mduba v. Benedictine Hosp., 52 A.D.2d 450, 452–454, 384 N.Y.S.2d 527 [1976] ). The jury ultimately returned a verdict in favor of defendants, finding that Olsen did not negligently fail to timely consult a neurosurgeon once she learned of Tinsmon's CT scan results and, further, that Olsen did not depart from accepted standards of medical care in failing to transfer Tinsmon to AMCH without waiting for Stark to arrive. Judgments were thereafter entered in favor of each set of defendants. Plaintiffs now appeal, challenging certain rulings made by Supreme Court during the course of the trial.

Claiming that AMH and the Olsen defendants were united in interest in this lawsuit, plaintiffs assert that it was error for Supreme Court to permit the full participation of both sets of attorneys throughout the trial. CPLR 4011 vests the trial court with the authority to "regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum." "Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his [or her] own choosing.... This right is not restricted to criminal actions; it is equally applicable to civil actions" ( Schulman v. Consolidated Edison Co. of N.Y., 85 A.D.2d 186, 188, 447 N.Y.S.2d 722 [1982] [internal quotation marks and citations omitted]; see Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] ). While "a party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged," it is not without limit ( Scopin v. Goolsby, 88 A.D.3d 782, 784, 930 N.Y.S.2d 639 [2011] [internal quotation marks, brackets and citations omitted]; see Greene v. Greene, 47 N.Y.2d 447, 453, 418 N.Y.S.2d 379, 391 N.E.2d 1355 [1979] ; Schulman v. Consolidated Edison Co. of N.Y., 85 A.D.2d at 188, 447 N.Y.S.2d 722 ). Nevertheless, "any restriction imposed on that right will be carefully scrutinized," and such right "will not yield unless confronted with some overriding competing public interest" ( Matter of Abrams [John Anonymous], 62 N.Y.2d at 196, 476 N.Y.S.2d 494, 465 N.E.2d 1 ; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ; Rosenzweig v. Blinshteyn, 149 A.D.2d 280, 283, 544 N.Y.S.2d 865 [1989] ).

Prior to trial, plaintiffs sought to limit AMH and the Olsen defendants to representation by one attorney or, alternatively, to moderate the participation of AMH's counsel, claiming that the two sets of defendants had "identical defenses." While it is true that the primary allegations of negligence were directed at Olsen and that liability on the part of AMH for Olsen's negligence, if any, would be purely vicarious, plaintiffs' theory of liability against AMH was not so limited. To the contrary, plaintiffs' bill of particulars sets forth various claims of direct negligence on the part of AMH, including allegations that AMH deviated from acceptable standards of care or was otherwise negligent by "failing to have adequate and/or appropriate policies and/or procedures for the transfer to AMCH of traumatic head injury patients"; "failing to have adequate and/or appropriate policies and/or procedures for neurosurgical consultation"; and "failing to have adequate and/or appropriate policies and/or procedures for availability of a respiratory therapist for the transfer of patients to AMCH." Given the separate and distinct liabilities of AMH and the Olsen defendants at this juncture of the litigation, there was simply no basis upon which to limit the participation of AMH's attorney (see Chemprene, Inc. v. X–Tyal Intl. Corp., 55 N.Y.2d 900, 901, 449 N.Y.S.2d 23, 433 N.E.2d 1271 [1982] ; Phillips v. Chevrolet Tonawanda Div. of General Motors Corp., 43 A.D.2d 891, 892, 352 N.Y.S.2d 73 [1974] ; Lyman v. Fidelity & Cas. Co., 65 App.Div. 27, 28, 72 N.Y.S. 498 [1901] ).

Following the dismissal of all claims of direct negligence asserted against AMH, plaintiffs renewed their motion to have the role of AMH's counsel limited. While the dismissal of the direct negligence claims rendered AMH's potential liability purely vicarious in nature, we are unable to conclude that Supreme Court's refusal to limit the role of AMH's counsel during the remainder of the trial to essentially that of a spectator was in error. Because AMH's liability would be determined by the jury's findings in relation to plaintiffs' claims of negligence against Olsen, AMH was entitled to participate in the efforts to defeat those claims (cf. Phillips v. Chevrolet Tonawanda Div. of General Motors Corp., 43 A.D.2d at 892, 352 N.Y.S.2d 73 ). Supreme Court promised to exert control over the cross-examination of the remaining witnesses by AMH's counsel, indicating its intent to prevent any attempt by AMH to "reiterate or to plow ground that has already been plowed by one side or the other," and the record reflects that counsel's cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination. The balanced approach taken by the court served to ensure defendants' valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof (see Newark v. Pimentel, 117 A.D.3d 581, 581, 986 N.Y.S.2d 89 [2014] ). Under these circumstances, we find no "clear abuse of discretion" in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof ( Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 [1980] ; see CPLR 4011 ; cf. Salm v. Moses, 13 N.Y.3d 816, 817, 890 N.Y.S.2d 385, 918 N.E.2d 897 [2009] ; Matter of Aniya L. [Samantha L.], 124 A.D.3d 1001, 1002, 1 N.Y.S.3d 527 [2015], lv denied 25 N.Y.3d 904, 2015 WL 2032963 [2015] ; Newark v. Pimentel, 117 A.D.3d at 581, 986 N.Y.S.2d 89 ; compare Mars Assoc. v. New York City Educ. Constr. Fund, 126 A.D.2d 178, 193, 513 N.Y.S.2d 125 [1987], lv dismissed 70 N.Y.2d 747, 519 N.Y.S.2d 1033, 514 N.E.2d 391 [1987] ).

Nor are we persuaded that a new trial is warranted because Supreme Court permitted evidence, in the form of a patient log and treatment records, showing that...

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