Restrepo v. State

• Decision Date: 26 December 1989
• Docket Number: Nos. 69819,s. 69819
• Citation: 550 N.Y.S.2d 536,146 Misc.2d 349
• Court: New York Court of Claims
• Parties: In the Matter of the Claim of Ramiro A. RESTREPO and Beatriz F. Restrepo, a/k/a Singin Frog Stable, Claimants, v. The STATE of New York and New York State Racing & Wagering Board, Defendants. (Claim) Court of Claims of New York

Page 536

550 N.Y.S.2d 536

146 Misc.2d 349

In the Matter of the Claim of Ramiro A. RESTREPO and Beatriz

F. Restrepo, a/k/a Singin Frog Stable, Claimants, v. The STATE of New York and New York State Racing & Wagering

Board, Defendants.

(Claim Nos. 69819.)

Court of Claims of New York.

Dec. 26, 1989.

Morris, Graham, Stephens & McMorrow by William H. Morris, of counsel, for claimants.

Robert Abrams, Atty. Gen., by Robert S. Hammer, of counsel, for defendants.

GERARD M. WEISBERG, Judge.

In this action for veterinary malpractice, we must decide whether the "locality rule" extant in other professions applies to veterinarians as well as whether CPLR 2306 and 4518(c) are applicable to animal hospitals. In addition, we must resolve whether the public interest in avoiding the delay or cancellation of horse races at a major metropolitan race track justifies a State veterinarian in abandoning treatment of an injured animal and, if so, whether just compensation must then be paid to the animal's owners for the resulting destruction of its value.

Claimants' three-year-old thoroughbred filly, Tiki Singh, was scheduled to run at Aqueduct Race Track in Queens, New York, on November 13, 1983. Pursuant to the rules of the New York State Racing and Wagering Board (Board), all horses entered in races at New York tracks must have their blood chemically analyzed prior to race time in order to check for illegal drugs or medicines. On the day in question, Dr. Allan J. Ahearne, a veterinarian employed by the Board, was visiting the stalls of the 25 to 30 horses scheduled to participate that afternoon in order to perform the blood tests. The normal procedure was to insert a vacutainer needle laterally into the jugular vein of each horse and draw out sufficient blood for analysis.

Between 7:30 and 8:00 A.M., Dr. Ahearne appeared at Tiki Singh's stall. After verifying her identification tattoo number, one of claimants' grooms, Luis Alvarez, held Tiki Singh's halter and the doctor inserted the one and one-half to two-inch needle into her jugular vein. For no apparent reason, the needle broke off. Dr. Ahearne testified at his deposition, introduced into evidence, that he could feel it under the horse's hide in or next to her vein. However, since he had no surgical equipment with him and had to complete the other blood tests, he circled the spot where the needle was lodged with a green marking pen and told the groom to arrange for another veterinarian to treat her. It was not until several hours later that Dr. James Brewer was able to see Tiki Singh. He examined her but was unable to locate the broken needle. He therefore arranged for her to be transported to the University of Pennsylvania, School of Veterinary Medicine, Widener Hospital, on or about December 1, 1983. When the horse was x-rayed, the needle was located in an inoperable area of her lungs. Tiki Singh has never raced again. She was put out to pasture and eventually taken in satisfaction of outstanding feed bills.

The gravamen of claimants' cause of action is that Dr. Ahearne had a duty and responsibility to either remove the broken needle or arrange for another veterinarian to treat Tiki Singh before he left the stall and the needle fragment migrated. Defendants respond that there was insufficient proof that the horse x-rayed at the University of Pennsylvania was Tiki Singh or, alternatively, that Dr. Ahearne departed from good and accepted veterinary practice at New York race tracks. In addition, defendants submitted affirmative proof that as the track veterinarian he was strictly prohibited from treating Tiki Singh, nor could he remain with her because he had to complete the remaining pre-race blood tests.

With respect to the identity of the injured filly, claimants offered the medical records and x-rays taken at Widener Hospital. These showed that a three-year-old thoroughbred filly named Tiki Singh was admitted on December 1, 1983 and was found to have a needle lodged in her lungs. A certification of correctness by the Business Manager of the hospital also accompanied the x-rays, ¹ and defendants conceded that the written records were an accurate copy of whatever was on file at the hospital. Moreover, claimants produced two veterinarians, Dr. James M. Brewer and Dr. Carol McLeod, who had both worked and studied at Widener Hospital, and who testified to the reputation and general record-keeping procedures at that institution. They also stated that the offered documents and x-rays were of the type regularly kept there in the regular course of its business and practice.

Defendants objected to their introduction on the grounds that an insufficient foundation had been laid under CPLR 4518(a) and that CPLR 4518(c) was inapplicable inasmuch as this was a veterinary hospital. We find, however, that they are admissible under either subsection.

CPLR 4518(a) provides that records are admissible as proof of their contents provided: (1) they are made in the regular course of business, (2) at or about the time of the event recorded, or a reasonable time thereafter, and (3) that such enterprise regularly makes such records.

Claimants' experts clearly established the third element of this test. In addition, they testified that a file in the form of those offered in evidence would be set up for the animal and entries made on the dates indicated. Based thereon and that the records were on Widener Hospital forms and certified by such institution or conceded as correct, we find they were made in the ordinary course of business and at or about the time of treatment. They are therefore admissible in accordance with CPLR 4518(a). (See also, Proposed N.Y.Code of Evidence § 803[24] [1980].)

Moreover, pursuant to CPLR 2306 and 4518(c), hospital records, including x-rays, certified as correct, are admissible without any further foundation. (Matter of Quinton A., 68 A.D.2d 394, 417 N.Y.S.2d 738, revd. on other grounds 49 N.Y.2d 328, 425 N.Y.S.2d 788, 402 N.E.2d 126.) Defendants object to the applicability of these provisions on the basis that the term "hospital" is defined in section 2801 of the Public Health Law as a place for the treatment of human diseases. We reject that interpretation for both technical and policy reasons. First, because article 28 of the Public Health Law is concerned with the regulation and licensing of human hospitals in New York State, not the admissibility of evidence in civil trials. Therefore, not surprisingly, such definition is not incorporated by reference into CPLR 2306 or 4518. Second, the same salutary benefits achieved by allowing certified hospital records into evidence without further foundation would be served by construing the term hospital to include those for the care and treatment of animals.

The predecessor statute to CPLR 2306 was Code of Civil Procedure § 867-a (added by L.1915, ch. 325) which provided, in language almost identical to CPLR 2306 that certified copies of public hospital records could be produced in response to a subpoena without a hospital employee needing to appear. In 1929 this was broadened to include the records of all hospitals (see, L.1929, ch. 339) and thereafter to include the records of municipalities and the State. (See, L.1936, ch. 741; L.1957, ch. 866; see also, Civil Practice Act § 412.) The reason for the rule was that these institutions produced records in the regular course of their duties and it was an unwarranted inconvenience to compel the appearance of an employee to state this obvious proposition. (See, 1957 N.Y.Legis.Ann., at 44.) Inasmuch as a "hospital" was traditionally defined as a "specialized hotel where the sick or infirm in body or mind may be treated" (Daly's Astoria Sanatorium v. Blair, 161 Misc. 716, 719, 291 N.Y.S. 1006), and animal hospitals treat infirm animals and keep records in the regular course of their business, it would be an unwarranted inconvenience to require that they send an employee to so state. We therefore cannot hold that the Legislature intended to exclude "veterinary hospital" from the general term "hospital" as stated in CPLR 2306. (See also, Joyce v. Kowalcewski, 80 A.D.2d 27, 437 N.Y.S.2d 809 [out-of-state hospital records voluntarily produced within CPLR 2306 and 4518(c) ].) ²

Ultimately, defendants' real objection is to what they consider to be insufficient verification that the horse examined and x-rayed at the University of Pennsylvania was Tiki Singh, noting that her identification tattoo number was omitted from the records. The answer is that once a foundation has been established under CPLR 4518(a) or (c) the records are admissible and prima facie proof of their contents. The burden of proving them false shifts to the other side (Matter of Quinton A., 68 A.D.2d 394, 417 N.Y.S.2d 738, revd. on other grounds 49 N.Y.2d 328, 425 N.Y.S.2d 788, 402 N.E.2d 126, supra ), which defendant could have attempted to do by subpoenaing the production of Tiki Singh and having her reexamined. Moreover, defendants' speculation that the records were not Tiki Singh's is incredible.

Every horse which races at United States tracks has a unique registered name and identification number tattoed on his or her lip. Here, the defendants' veterinarian admitted that he broke off a needle in Tiki Singh's throat and could not remove it. A three-year-old filly thoroughbred under the name of Tiki Singh was then sent to the University of Pennsylvania and x-rayed there and found to have a needle in its lungs and no one under Tiki Singh's name or identification number has raced since then. Defendants' apparent theory that claimants have kept the horse from further racing while substituting another thoroughbred with a needle in its lungs leaves us incredulous. We therefore hold the records and x-rays admissible and find that the injured animal is in fact Tiki Singh.

With respect to the appropriate standard of care which Dr. Ahearne owed Tiki Singh, claimants' expert, Dr. Carol McLeod,...