Vaughan v. Saint Francis Hosptial

• Decision Date: 11 May 2006
• Docket Number: 99283.
• Citation: 29 A.D.3d 1133,815 N.Y.S.2d 307,2006 NY Slip Op 03673
• Parties: SHANNON VAUGHAN, as Parent and Guardian of RONALD BAKER, an Infant, Respondent, v. SAINT FRANCIS HOSPITAL, Defendant and Third-Party Plaintiff-Appellant, et al., Defendants. EMERGENCY TREATMENT ASSOCIATES et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 1133

815 N.Y.S.2d 307

2006 NY Slip Op 03673

SHANNON VAUGHAN, as Parent and Guardian of RONALD BAKER, an Infant, Respondent, v. SAINT FRANCIS HOSPITAL, Defendant and Third-Party Plaintiff-Appellant, et al., Defendants EMERGENCY TREATMENT ASSOCIATES et al., Third-Party Defendants-Appellants.

99283.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 11, 2006.

Appeals (1) from an order of the Supreme Court (Spargo, J.), entered January 24, 2005 in Ulster County, which partially granted plaintiff's motion to, inter alia, dismiss certain affirmative defenses of defendant Saint Francis Hospital, and (2) from an order of said court, entered October 24, 2005 in Ulster County, which, inter alia, upon reconsideration, precluded defendants and third-party defendants from offering certain evidence.

Lahtinen, J.

Plaintiff brought her 26-month-old son to the emergency room at defendant Saint Francis Hospital (hereinafter the hospital) in the early afternoon of April 9, 1998. The child was triaged by the screening nurse as a category 2 (out of 3 categories), presenting symptoms of vomiting, fever and slight listlessness. A physician's assistant, third-party defendant Olga Rodriguez, examined the child, whose initial temperature was 103.4, rose to 104 and, after receiving Tylenol and Advil, reportedly dropped to 101.4. Plaintiff allegedly told Rodriguez that she had recently experienced similar symptoms. Rodriguez diagnosed the child as suffering from a "viral syndrome" and, although the hospital's guidelines ostensibly required a patient triaged as category 2 to be coevaluated by a physician, the child was discharged without being seen by a physician. The discharge directions included "[r]eturn for increased fever, vomiting," "[i]f symptoms worsen, return immediately," and that the child be seen by his pediatrician the next morning.

Plaintiff did not take the child to the pediatrician the following day. The child next received medical care when he was brought back to the emergency room at the hospital in the early morning hours of April 12, 1998. Symptoms at that time included fever, vomiting and seizures. The child was examined by a physician, third-party defendant Louis Mendoza, and, after some alleged delay, was transferred to Westchester Medical Center. The child was diagnosed with bacterial meningitis, which caused him to suffer various asserted severe injuries, including brain damage, spastic quadriparesis and cortical blindness.

In January 2003, plaintiff, acting on the child's behalf, commenced this medical malpractice action against the hospital and various John Does and Jane Does. The hospital's answer included as a first affirmative defense a standard allegation that any damages should be diminished by plaintiff's culpable conduct pursuant to CPLR articles 14 and 14-A. Plaintiff moved to, among other things, dismiss the first affirmative defense as well as to preclude any evidence regarding "parental negligence and redact[ ] any references to parental negligence from any documents," including not permitting the hospital's emergency room discharge instructions into evidence. The hospital withdrew the first affirmative defense to the extent that it applied to conduct by the child, but otherwise opposed the motion. It argued that the discharge instructions were vital to its defense, which was premised in part upon the assertion that the appropriate standard of care included discharging the child with such instructions as were provided.

While the motion was pending, the hospital commenced a third-party action against Emergency Treatment Associates, a corporation that provided emergency room services at the hospital, and various individuals including Rodriguez and Mendoza. The third-party defendants essentially adopted the hospital's position regarding plaintiff's pending motion. Supreme Court, among other things, granted that part of the motion seeking to preclude all evidence of parental negligence, but denied, without prejudice, the request to preclude the hospital's discharge instructions since the bill of particulars contained a contention that inadequate discharge instructions was one of the claimed grounds of negligent conduct by the hospital.

Thereafter, plaintiff withdrew the allegation of inadequate discharge instructions from her bill of particulars and moved to renew her motion to preclude the hospital's discharge instructions as well as any evidence regarding the instructions. Supreme Court, among other things, granted renewal and held that "defendants and third-party defendants are precluded from offering the April 9, 1998 discharge instructions into evidence or in any way referring to such instructions at trial." The hospital and third-party defendants appeal from both orders.

We consider first plaintiff's contention that the orders are not appealable. "[A]n order which merely limits the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (Strait v Ogden Med. Ctr., 246 AD2d 12, 14 [1998] [internal quotation marks and citations omitted]; see Ferrara v Kearney, 285 AD2d 890, 890 [2001]; Brennan v Mabey's Moving & Stor., 226 AD2d 938, 938 [1996]). However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable (see Brown v State of New York, 250 AD2d 314, 320-321 [1998]; see also Scalp & Blade v Advest, Inc., 309 AD2d 219, 223-224 [2003]; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811 [2003]). Here, Supreme Court cast a broad blanket precluding the hospital from offering its own discharge instructions as well as any evidence about whether those instructions were followed. This significantly undercuts the primary theory of the hospital, i.e., that discharging the child with specific instructions to the parent fell within the acceptable standard of care. Such a ruling has a clear potential of impacting the merits and it affects a substantial right of the hospital. Indeed, in light of the opinions of plaintiff's experts, such a ruling was essentially tantamount to summary judgment for plaintiff on the issue of liability. Accordingly, we conclude that the appeals are properly before us.

Next, we turn to the argument of the hospital and third-party defendants that Supreme Court erred in its application of General Obligations Law § 3-111. That statute provides that "[i]n an action brought by an infant to recover damages...