Wild v. System

• Decision Date: 17 June 2011
• Citation: 85 A.D.3d 1715,2011 N.Y. Slip Op. 05337,927 N.Y.S.2d 250
• Parties: Marcia A. WILD, Thomas F. Horn, As Co–Executors of the Estate of Marguerite Horn, Deceased, and Joseph Horn, Plaintiffs–Respondents,v.CATHOLIC HEALTH SYSTEM, Doing Business As Mercy Hospital of Buffalo, et al., Defendants,Buffalo Emergency Associates, LLP and Raquel Martin, D.O., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1715
927 N.Y.S.2d 250
2011 N.Y. Slip Op. 05337

Marcia A. WILD, Thomas F. Horn, As Co–Executors of the Estate of Marguerite Horn, Deceased, and Joseph Horn, Plaintiffs–Respondents,
v.
CATHOLIC HEALTH SYSTEM, Doing Business As Mercy Hospital of Buffalo, et al., Defendants,Buffalo Emergency Associates, LLP and Raquel Martin, D.O., Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 17, 2011.

[927 N.Y.S.2d 251]

Damon Morey LLP, Buffalo (Michael J. Willett of Counsel), for Defendants–Appellants.

[927 N.Y.S.2d 252]

Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiffs–Respondents.PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.MEMORANDUM:

[85 A.D.3d 1716] Marguerite Horn (decedent) was treated at defendant Catholic Health System, doing business as Mercy Hospital of Buffalo (Mercy Hospital), after her husband, plaintiff Joseph Horn, discovered that she was unresponsive. Although decedent regained consciousness, she again became unresponsive when she suffered a seizure while at Mercy Hospital. After decedent developed respiratory problems, defendant Raquel Martin, D.O., the emergency room physician treating decedent, concluded that decedent needed to be intubated. Following two unsuccessful attempts by Dr. Martin to place an endotracheal tube in decedent's throat, Dr. Martin directed at least two other persons to attempt to place the tube. When those attempts failed, an anesthesiologist was summoned, and he successfully intubated decedent. At some point during the intubation procedure, Dr. Martin and others observed a subcutaneous emphysema under decedent's skin, but it was not until several days later that physicians discovered that decedent's esophagus had been perforated during the intubation procedure. The perforation could not be repaired, and a feeding tube therefore was inserted into decedent's stomach. As a result, decedent was never again able to consume solid foods or liquids normally.

Decedent and her husband commenced this medical malpractice action against multiple defendants seeking damages for the perforated esophagus and the injuries related thereto. Following decedent's death from causes unrelated to the alleged malpractice, plaintiffs Marcia A. Wild and Thomas F. Horn were substituted as plaintiffs in their capacity as co-executors of decedent's estate. The matter proceeded to trial and the jury, having found that only Dr. Martin was negligent, awarded $500,000 for decedent's pain and suffering and $500,000 for her husband's derivative cause of action.

We reject the contention of Dr. Martin and her partnership, defendant Buffalo Emergency Associates, LLP (collectively, defendants), that Supreme Court exhibited bias in favor of plaintiffs or abused its “broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” ( Carlson v. Porter [appeal No. 2], 53 A.D.3d 1129, 1132, 861 N.Y.S.2d 907, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [internal quotation marks omitted] ). We agree with defendants, however, that the court erred in permitting plaintiffs to attempt to impeach defendants' expert during plaintiffs' cross-examination of that expert by playing an instructional DVD that he had helped to edit and finance, inasmuch as the expert testified that he did not accept the DVD as authoritative ( see [85 A.D.3d 1717] Winiarski v. Harris [appeal No. 2], 78 A.D.3d 1556, 1557–1558, 910 N.Y.S.2d 814). Under the circumstances of this case, however, we conclude that the error does not warrant reversal ( see id.).

Defendants further contend that the court erred in charging the jury with respect to proximate cause and, although we agree, we conclude that the error is harmless. The claims against defendants fell into two categories. The first category was that Dr. Martin was negligent during the intubation procedure, thereby causing the perforated esophagus (commission theories), and the...