Maldonado v. Cotter

• Decision Date: 31 December 1998
• Citation: 685 N.Y.S.2d 339,256 AD2d 1073
• Parties: 1998 N.Y. Slip Op. 11,722 Dora MALDONADO, as Parent and Natural Guardian of Edwin Rodriguez, and Dora Maldonado, Individually, Appellant, v. Christine COTTER, C.R.N.A., John B. Stevens, M.D., Leo Kane, M.D., Bryant Street Anesthesiologists, P.C., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 339

685 N.Y.S.2d 339

1998 N.Y. Slip Op. 11,722

Dora MALDONADO, as Parent and Natural Guardian of Edwin Rodriguez, and Dora Maldonado, Individually, Appellant, v. Christine COTTER, C.R.N.A., John B. Stevens, M.D., Leo Kane M.D., Bryant Street Anesthesiologists, P.C. Respondents, et al., Defendants.

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Dempsey & Dempsey by Helen Dempsey, Buffalo, for Plaintiff-Appellant.

Connors & Vilardo by Lawrence Vilardo (Kevin A. Ricotta, of counsel), Buffalo, for Defendants-Respondents.

Present: PINE, J.P., WISNER, PIGOTT, CALLAHAN and FALLON, JJ.

MEMORANDUM:

Plaintiff appeals from a judgment upon a jury verdict of no cause of action in this medical malpractice action. Plaintiff commenced this action individually and on behalf of her 14-month-old son to recover damages for injuries arising from complications following elective surgery on her son at Children's Hospital of Buffalo (Hospital). Plaintiff's son was admitted to the Hospital for repair of an undescended testicle and hernia. Plaintiff has withdrawn her appeal with respect to the verdict in favor of the urologist who performed the surgery. The anesthesia care was provided by members of defendant Bryant Street Anesthesiologists, P.C. After surgery, plaintiff's son was moved to the recovery room. There was evidence that he was left unattended for several minutes by the recovery room nurse assigned to his care, during which time he suffered cardiopulmonary arrest. Although he was resuscitated, his oxygen deprivation resulted in severe brain damage.

Plaintiff filed a complaint in 1990 against the Hospital, the recovery room nurse and the other medical personnel who were involved in the care of her son. During jury selection at a prior trial, plaintiff settled with the Hospital and the recovery room nurse. The court declared a mistrial. The second trial resulted in this verdict of no cause of action.

Supreme Court erred at trial in excluding evidence concerning the failure of the attending anesthesiologist and the nurse anesthetist to order continuous electronic monitoring of plaintiff's son in the recovery room based on his particular medical history and the course of anesthetics administered to him. Contrary to the contention of Christine Cotter, C.R.N.A., John B. Stevens, M.D., Leo Kane, M.D. and Bryant Street Anesthesiologists, P.C. (defendants), that theory of liability was alleged as early as 1990 in plaintiff's verified bill of particulars directed to them, and was repeated in her amended bill of particulars against them. Both pleadings allege that defendants failed to "establish and use appropriate cardiac and respiratory monitoring equipment in the recovery room". At trial, plaintiff's attorney contended that plaintiff's expert would have testified that electronic monitoring should have been used on plaintiff's son because of a history of an upper respiratory infection, and because he was unconscious and intubated when he was taken to the recovery room. That theory addressed defendants' alleged deviation from acceptable standards of care and was not an attempt to blame defendants for the Hospital's policy decisions about what equipment to provide. Plaintiff's offers of proof established that various electronic monitors were available in the recovery room at the time of the surgery upon order of the anesthesiologist or nurse anesthetist. Thus, the decision not to order their use in this particular case was a medical determination, not a matter of Hospital policy.

Further, defendants failed to establish either prejudice or surprise due to the alleged omission of the theory of continuous electronic monitoring against the attending anesthesiologist and the nurse anesthetist in plaintiff's expert disclosure notice under CPLR 3101(d). Allegations that the expert would testify that they deviated from acceptable standards of care by failing "to monitor the infant after removing him from the operating room" and "fail[ing] to appreciate changes in [his] respiratory rate and to properly access, monitor and respond to those changes" gave defendants sufficient notice of that theory (see, Gallo v. Linkow, --- A.D.2d ----, 679 N.Y.S.2d 377; Rook v. 60 Key Centre, 239 A.D.2d 926, 660 N.Y.S.2d 238). Because the court precluded plaintiff from introducing any evidence on a theory that might have resulted in a different verdict, a new trial before a different Justice is necessary (see, Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370-371, 582 N.Y.S.2d 1003).

Because we are reversing the judgment and granting a new trial before a different Justice, we note that the court also erred in excluding portions of the New York State Department of Health Statement of...