Paro v. KPH Healthcare Servs.

• Decision Date: 23 June 2021
• Docket Number: EFC-2019-1383,RJI No. 37-19-0421
• Parties: DESIREE PARO, As Administrator of the Estate of PATRICIA LEFEVERE, Deceased, Plaintiff, v. KPH HEALTHCARE SERVICES, INC., and MARK PALMER, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33390(U)

DESIREE PARO, As Administrator of the Estate of PATRICIA LEFEVERE, Deceased, Plaintiff, v. KPH HEALTHCARE SERVICES, INC., and MARK PALMER, Defendants.

No. EFC-2019-1383, RJI No. 37-19-0421

Supreme Court, Oswego County

June 23, 2021

Unpublished Opinion

James L. Alexander. Esq. Alexander & Associates Attorneys for Plaintiff

Zachary M. Mattison. Esq. Sugarman Law Firm. LLP Attorneys for Defendants

DECISION

HON GREGORY R. GILBERT JUSTICE

BACKGROUND

This matter involves the death of Patricia LeFevere ("LeFevere") alleged to he due to a medication error. The action was commenced on September 5, 2019. The defendants were KPH Healthcare Services. Inc ("KPH") and "John Doe" an unknown (at that lime) pharmacist.

The complaint was met with a pre-answer motion to dismiss directed to all claims for punitive damages. The complaint was amended and a third cause of action separately stated for punitive relief was removed although punitive damages were still sought as part of the first two causes of action. The motion to dismiss was denied without prejudice to a motion for summary judgment at an appropriate time by Order of Hon Norman W. Setter. Jr. filed November 19, 2019.

Issue was joined by answer filed November 20. 2019. A Scheduling Order was entered on December 4, 2019 and the parties proceeded with disclosure. A disclosure motion was denied by Judge Seiter by letter Decision &Order filed June 15, 2020.

The matter was thereafter transferred to this Court on a motion for leave to serve a second amended complaint to add pharmacist. Mark Palmer ("Palmer") in replacement of the "Doe" defendant. Defendant objected based on the inclusion of claims for punitive damages. Leave was granted by Decision & Order filed December 3, 2020. This Court observed that the sufficiency of the claims tor punitive damages had already been tested on the initial motion to dismiss and that the previous Order by Judge Seiter constituted law of the case finding the pleading to be sufficient. This Court also noted pursuant to that previous Order, that defendants retained the right to file dispositive motions as to the claims for punitive damages following disclosure.

The trial note of issue was filed on March 25, 2021. The claim for punitive relief from KPH was withdrawn by stipulation [DKT# 64], This motion for summary judgment to dismiss the claims for punitive damages against Palmer followed. Plaintiff has filed a cross motion for summary judgment to dismiss various affirmative defenses and for determinations on liability and causation.

DISCUSSION

Summary judgment may be granted only where there are no triable issues of fact and the moving party is entitled to judgment as a matter of law . Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). There is an affirmative obligation for the moving party to present the proof upon which it is claimed that relief must be granted. Voss v. Netherlands Insurance Co., 22 N.Y.3d 728 (2014); Yun Tung Chow v. Reckitt & Colman. Inc., 17 N.Y.3d 29 (2011). The motion or cross motion needs to be supported by sufficient evidence in admissible form to show the material and undisputed facts based on which judgment as a matter of law must be granted. Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985); Viviane Etienne Medical Care. P.C. v. Country-Wide Insurance Company, 25 N.Y.3d 498 (2015). In the absence of such a showing, the motion or cross motion must be denied regardless of the sufficiency of the responding papers. Vega v. Restani Construction Corp., 18 N.Y.3d 499 (2012): Smalls v. AJI Industries. Inc., 10 N.Y.3d 733 (2008).

On the motion or cross motion, the Court is charged to view the evidence and inferences arising therefrom in a light most favorable to the responding party. Haymon v. Pettit. 9 N.Y.3d 324 (2007); fundamental Portfolio Advisors. Inc, v. Tocqueville Asset Management.. LP. 7 N.Y.3d 96 (2006). The motion or cross motion may only be granted where no material triable issue of fact has been identified. Panepinto v. New York Life Insurance Co., 90 N.Y.2d 717 (1997); Rotuba Extruders, Inc, v. Ceppos, 46 N Y2d 223 (1978). The function of the Court is the determination of whether a triable issue of fact exists and not one determining material fact or credibility issues. Vega v. Restani Construction Corp., 18 N.Y.3d 499; Sillman v. Twentieth Century-Fox film Corp., 3 N.Y.2d 395 (1957).

MOTION AS TO PUNITIVE DAMAGES

The motion before the Court is one seeking summary judgment as to all claims of punitive damages against Palmer, individually. The standard for applying punitive damages is a strict one as punitive damages apply only in exceptional cases where the conduct manifests spite, malice or fraudulent or evil motivation or shows a conscious and deliberate disregard tor the interests of others, or otherwise a high degree of immorality or wanton dishonesty as to imply criminal indifference to civil obligations. Marinaccio v. Town of Clarence, 20 N.Y.3d 506 (2013); Dupree v Giugliano, 20 N.Y.3d 921 (2012) reargument denied 20 N.Y.3d 1045; Burkhart v. People. Inc., (4^th Dept 2019); Fordham-Coleman v. National Fuel Gas Distribution Corp., 42 A.D.3d 106 (4^th Dept 2007).

The determination of whether a plaintiff is entitled to an award of punitive damages resides in the sound discretion of a jury at trial. Nardelli v. Stamberg, 44 N.Y.2d 500 (1978); Fordham -Coleman v. National Fuel Gas Distribution Corp., 42 A.D.3d 106 (4^th Dept 2007); Baity v. General Electric Co., 86 A.D.3d 948 (4^th Dept 2011). In professional malpractice cases, the standard for the award of punitive damages is the manifestation of evil or malicious conduct beyond any breach of professional duty. Dupree v. Giugliano. 20 N.Y.3d 921 (2012). Plaintiff bears the burden at trial, to show that Palmer's conduct was so intentional, malicious, outrageous or otherwise aggravated beyond mere negligence to warrant extraordinary sanction. McDougald v. Garber, 73 N.Y.2d 246 (1989); Graham v. Columbia-Presbyterian Medical Center, 185 A.D.2d 753 (1^st Dept 1992): Peltier v. Wakhloo, 20 A.D.3d 870 (4^th Dept 2005); Marsh v. Arnot Ogden Medical Center, 91 A.D.3d 1070 (3 rd Dept 2012). Assuming that the burden on the motion for summary judgment is properly shifted to plaintiff, plaintiff must show a question of fact that Palmer's conduct rises to the level required for a finding of punitive relief.

Punitive damages have been found to be appropriate where the medical provider willfully withholds medical records and information from a plaintiff in order to avoid a medical malpractice claim [Abraham v. Kosinski, 251 A.D.2d 967 (4^th Dept 1998); Gomez v. Cabatic, 159 A.D.3d 62 (2nd Dept 2018)]; performs a procedure without plaintiffs consent [McCarthy v. Shah, 162 A.D.3d 1727 (4^th Dept 2018)]: or intentionally exposes a patient to the risk of contracting hepatitis B [Williams v. Halpern, 25 A.D.3d 467 (1^st Dept 2006)]. Absent wanton dishonesty, gross indifference to patient care or malicious or reckless conduct, punitive relief is not proper. Brown v. LaFontaine-Rish Medical Associates, 33 A.D.3d 470 (1^st Dept 2006); Charell v. Gonzalez, 25 1 A.D.2d 72 (1^st Dept 1998) motion for leave to appeal denied 92 N.Y.2d 816.

This Court has carefully considered the case. Cleveland v. Perry, 175 A.D.3d 1017 (4th Dept 2019). In Cleveland, a claim for punitive damages was made against a doctor who abandoned a patient he had declared to be dead for a period of two hours and forty minutes despite the urging of the family and the coroner that the patient was. in fact, still alive, breathing, making eye contact and moving around. Even under these facts, the trial court granted summary judgment dismissing claims for punitive damages and this was affirmed. The trial level and appellate courts both found that the conduct did not manifest evil or malicious conduct beyond the breach of a professional duty or constitute reckless indifference equivalent to wilful or intentional misconduct.

The Cleveland case can be contrasted with the case. Marsh v. Arnot Ogden Medical Center, 91 A.D.3d 1070 (3rd Dept 2012). This is a case where plaintiff was administered insulin despite warnings that she was not diabetic and did not use insulin, the insulin was given without confirmation of the plaintiffs identity or that insulin had even been ordered. The physician was then alleged to have abandoned the patient after being told of the insulin error by not examining plaintiff and ordering that all monitoring of plaintiffs glucose level was to be discontinued. The medication error was not charted until four months after plaintiff died. The motion for summary judgment dismissing punitive relief was granted by the trial court but reversed and the punitive damages claim was reinstated on appeal.

The deposition transcript of Palmer has been closely reviewed. Palmer acknowledges that there was no prescription for methotrexate and that the prescription for metolazone "was misinterpreted". [DKT# 76 pg. 29] Palmer indicates that he furthered the error because the two medications were "a common strength'" measured at 2.5 milligrams. [DKT# 76 pg. 31] lie acknowledged that the prescription was for metolazone and that he reviewed the submission by the pharmacy technician for methotrexate and failed to catch the error on his pre-verification. [DKT# 76 pg. 34] Palmer admitted that methotrexate "is generally not prescribed daily". [DKT# 76 pg. 43] Palmer was not able to independently recall what computer information he reviewed or the DUR warnings came up in this matter. Palmer indicated that he was not familiar with LaFevere, they "were working with limited information" and that LaFevere's patient profile was...