Angieri v. Musso

2024 NY Slip Op 00887

Barbara Angieri, etc., appellant, v. Maria Musso, etc., et al., respondents.

2020-03568

Index No. 702055/17

Supreme Court of New York, Second Department

February 21, 2024

Sullivan Papain Block McManus Coffinas & Cannavo P.C. New York, NY (Stephen C. Glasser and Christopher J DelliCarpini of counsel), for appellant.

Keller, O'Reilly & Watson, P.C., Woodbury, NY (Patrick J. Engle of counsel), for respondent Maria Musso.

Heidell, Pittoni, Murphy & Bach LLP, New York, NY (Daniel S. Ratner of counsel), for respondent Northwell Health-North Shore University Hospital.

MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.

OPINION & ORDER

WARHIT, J

APPEAL by the plaintiff, in an action to recover damages for medical malpractice, etc., from a judgment of the Supreme Court (Joseph J. Esposito, J.), entered April 14, 2020, in Queens County. The judgment, (1) upon a jury verdict in favor of the defendants on the issue of liability, (2) upon the denial of the application of the plaintiff and Giovanni Angieri, in effect, pursuant to CPLR 4402 for a new trial, and (3) upon the denial of the application of the plaintiff and Giovanni Angieri, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against the plaintiff and Giovanni Angieri, in effect, dismissing the complaint.

The principal question presented on this appeal is whether the defendants improperly attempted at trial to shift liability to certain physician-defendants who had been awarded summary judgment prior to trial. We answer this question in the negative, and find that the Supreme Court providently exercised its discretion in denying the application of the plaintiff and Giovanni Angieri, in effect, for a new trial on this ground. We further conclude that the verdict was not contrary to the weight of the evidence.

I. Factual and Procedural Background

On July 27, 2015, Giovanni Angieri (hereinafter Giovanni) underwent a hernia surgery performed by Angelo John Procaccino, with the assistance of an anesthesiologist, Shimon Frankel, at the defendant Northwell Health-North Shore University Hospital (hereinafter the hospital). Subsequently, Giovanni, and his wife, Barbara Angieri (hereinafter together the Angieris), suing derivatively, commenced this action against the hospital, Procaccino, Frankel, and Maria Musso, Giovanni's primary care physician, inter alia, to recover damages for medical malpractice in connection with an alleged postoperative respiratory arrest suffered by Giovanni at the hospital on July 28, 2015. Prior to trial, the Supreme Court granted the separate motions of Procaccino and Frankel for summary judgment dismissing the complaint insofar as asserted against each of them (see Angieri v Procaccino, M.D., 2019 WL 4239373 [Sup Ct, Queens County, July 31, 2019, No. 702055/2017]), and the action proceeded to trial against Musso and the hospital.

At trial, the Angieris' theory of liability with respect to Musso was that she improperly failed to list certain medications Giovanni was taking for a respiratory condition on a presurgical clearance form that was forwarded to the hospital, which led to him suffering a postoperative respiratory arrest. More specifically, the Angieris' counsel argued to the jury in his opening statement that, as a result of Musso's failure to list Giovanni's respiratory medications on the presurgical clearance form, hospital personnel responsible for his postoperative care "did not know that [he] needed these medications to breathe, to prevent respiratory arrest and ultimately coma." The Angieris' theory against the hospital was that its staff failed to adequately respond to complaints by members of Giovanni's family that he was having difficulty breathing the day after the surgery, which also caused him to suffer respiratory arrest.

The Angieris presented, among other evidence, testimony from Musso acknowledging that she should have, but did not, list Giovanni's respiratory medications on the presurgical report she prepared clearing him for surgery. Musso also testified that the doctors at the hospital were nevertheless aware that Giovanni was taking those medications, which were documented in a medication list contained in the hospital chart, and that the doctors at the hospital would be responsible for giving him medications following the surgery. The Angieris also called an expert witness who testified that Musso's failure to include the respiratory medications on the presurgical clearance form was a substantial factor in the hospital's failure to administer those medications and in causing Giovanni's respiratory arrest. With respect to the hospital, the Angieris' expert opined that the failure of the nurse on duty and the hospital to respond to complaints by Giovanni's wife and his niece that he was having difficulty breathing and needed his medication was likewise a substantial factor in causing his respiratory arrest.

Musso presented evidence indicating that both Procaccino and Frankel were aware of Giovanni's respiratory condition and his respiratory medications, as they were documented in Frankel's pre-anesthesia evaluation notes and Procaccino's office records. Musso also presented evidence that Giovanni was not in respiratory distress at any time during his hospitalization and that he did not suffer an acute respiratory arrest, but instead, suffered a transient arrhythmia that was unrelated to the failure to take his medications.

The hospital called an expert witness who similarly opined that Giovanni suffered "a sudden rhythm disturbance of his heart" on July 28 due to, among other factors, his obesity and long-term hypertension. The hospital's expert testified that Giovanni's "heart failed," after which he had respiratory distress, which was unrelated to the absence of his medications on July 27 and July 28. The hospital's expert opined that the nursing staff and other medical providers at the hospital appropriately responded to Giovanni, and that he did not suffer any respiratory distress at any point on July 28 before the arrhythmia.

Application, in Effect, for a New Trial

During the trial, the Angieris' counsel made an application, in effect, pursuant to CPLR 4402 for a new trial on the ground that Musso and the hospital improperly attempted to shift liability to Procaccino and Frankel, who had been awarded summary judgment dismissing the complaint insofar as asserted against each of them prior to trial. The Angieris' counsel argued that summary judgment was the functional equivalent of a trial, and that the "remaining defendants [were] not entitled to the benefit of CPLR Article 16 limited liability, particularly when those [summary judgment] motions were unopposed by the defendants."

Counsel for Musso and counsel for the hospital opposed the Angieris' application, contending that no testimony had been elicited criticizing or attempting to blame Procaccino or Frankel for any alleged departures, and that Musso and the hospital were entitled to bring to the jury's attention medical records and facts involving those practitioners.

The Supreme Court denied the Angieris' application. The Angieris' counsel made subsequent renewed applications for the same relief. Those applications were denied as well.

The Verdict

At the conclusion of the trial, the jury returned a verdict finding that, although Musso "depart[ed] from good and accepted medical practice in providing the hospital with a medical clearance form which did not include [Giovanni's] respiratory medication on July 20, 2015," that departure was not a substantial factor in causing his injuries. With respect to the hospital, the jury found that it did not depart from good and accepted medical practice "by failing to respond to the family's complaints of [Giovanni's] difficulty breathing on July 28, 2015, prior to his arrest."

The Supreme Court subsequently denied the Angieris' application, in effect, pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and a judgment was entered in favor of Musso and the hospital and against the Angieris, in effect, dismissing the complaint. The Angieris appeal. During the pendency of the appeal, Giovanni died, and Barbara Angieri, as the administrator of his estate, was substituted for him.

II. Legal Analysis

A. Denial of the Application, in Effect, Pursuant to CPLR 4402 for a New Trial

On appeal, the plaintiff contends that a new trial is warranted because the Supreme Court improperly permitted Musso and the hospital to shift blame for Giovanni's injuries to Procaccino and Frankel, both of whom had been awarded summary judgment and dismissed from the action prior to trial.

Pursuant to CPLR 4402, "[a]t any time during the trial, the court, on motion of any party, may order... a new trial in the interest of justice on such terms as may be just." "The decision to grant or deny a mistrial in the interest of justice pursuant to CPLR 4402 'is within the sound discretion of the court, and is to be made on a case-by-case basis'" (Johnson-Hendy v Mosu 201 A.D.3d 896, 898, quoting Frankson v Philip Morris Inc., 31 A.D.3d 372, 373; see McNamara v Hittner, 2 A.D.3d 417, 418). However, the denial of such a motion "may, given the facts of a particular case, constitute reversible error where it appears that the motion should have been granted to prevent a substantial possibility of injustice" (Cohn v Meyers, 125 A.D.2d 524, 527 [citation and internal quotation marks omitted]; see Johnson-Hendy v Mosu, 201 A.D.3d at 898; Frankson v Philip Morris Inc., 31 A.D.3d at 373; cf. CPLR 4404[a]; Duman v Scharf, 186...