Johnson-Hendy v. Mosu

201 A.D.3d 896

160 N.Y.S.3d 111

Cassandra JOHNSON–HENDY, appellant,

v.Nicolae MOSU, etc., et al., respondents, et al, defendants.

2018–11051, 2018–12264

Index No. 701900/15

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

Argued—December 14, 2021

January 26, 2022

The Fitzgerald Law Firm, P.C., Yonkers, NY (John M. Daly, Mitchell Gittin, and Kathleen Waybourn of counsel), for appellant.

Fager Amsler Keller & Schoppmann, LLP, Latham, NY (Nancy E. May–Skinner and Marc Falcone of counsel), for respondents.

BETSY BARROS, J.P., FRANCESCA E. CONNOLLY, SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) a judgment of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered August 3, 2018, and (2) an order of the same court entered September 24, 2018. The judgment, (1) upon the denial of the plaintiff's application, made at the close of the plaintiff's case on the issue of liability, in effect, pursuant to CPLR 4402 for a new trial against the defendants Nicolae Mosu, Hemangi Shukla, and Steven Inglis, and (2) upon granting the separate applications of the defendants Nicolae Mosu, Hemangi Shukla, and Steven Inglis, made at the close of the plaintiff's case on the issue of liability, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of those defendants, is in favor of those defendants and against the plaintiff dismissing the complaint insofar as asserted against those defendants. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 4404(a) to vacate the judgment entered August 3, 2018, and for a new trial against the defendants Nicolae Mosu, Hemangi Shukla, and Steven Inglis.

ORDERED that the judgment is reversed, on the law, on the facts, and in the exercise of discretion, the plaintiff's application, made at the close of the plaintiff's case on the issue of liability, in effect, pursuant to CPLR 4402 for a new trial against the defendants Nicolae Mosu, Hemangi Shukla, and Steven Inglis, is granted, the separate applications of the defendants Nicolae Mosu, Hemangi Shukla, and Steven Inglis, made at the close of the plaintiff's case on the issue of liability, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of them are denied, the order entered September 24, 2018, is vacated, and the matter is remitted to the Supreme Court, Queens County, for a new trial against the defendants Nicholae Mosu, Hemangi Shukla, and Steven Inglis; and it is further,

ORDERED that the appeal from the order is dismissed as academic, in light of our determination on the appeal from the judgment; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

On September 10, 2012, the plaintiff, who was then approximately 21 weeks pregnant, was admitted to the Jamaica Hospital Medical Center. The defendant Nicolae Mosu diagnosed the plaintiff with inevitable abortion and suspected chorioamnionitis, which is an inflammation of the fetal membranes in the uterus due to a bacterial infection. Offered the option of terminating the pregnancy, the plaintiff declined and sought expectant management.

The following morning, the defendant Steven Inglis examined the plaintiff and diagnosed inevitable abortion. Inglis, however, found that chorioamnionitis was unlikely. Inglis advised the plaintiff, among other things, of the risk of infection.

In the evening, the plaintiff was treated by the defendant Hemangi Shukla and her resident. Following further discussions, the plaintiff agreed to induce labor and "expedite delivery of inevitable abortion." Early the next morning, after labor was induced with Cytotec, a stillborn infant was delivered. A pathological study of the placenta and fetus revealed no evidence of chorioamnionitis.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent against, among others, Mosu, Shukla, and Inglis (hereinafter collectively the defendants). As relevant here, Inglis and Shukla separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied those motions in an order entered August 15, 2017 (see Johnson–Hendy v. Mosu, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 221247 [Appellate Division Docket No. 2017–09311 ; decided herewith]).

The action proceeded to a jury trial that commenced in May 2018. At the close of the plaintiff's case on the issue of liability, the plaintiff's attorney made an application, in effect, pursuant to CPLR 4402 for a new trial against the defendants. The defendants made separate applications at that time, pursuant to CPLR 4401, for judgment as a matter of law dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the plaintiff's application for a new trial, and granted the defendants' separate applications for judgment as a matter of law. The court determined that the plaintiff failed to establish, prima facie, that the defendants departed from the accepted standard of medical care. The court subsequently entered a judgment on August 3, 2018, in favor of the defendants and against the plaintiff dismissing the complaint insofar as asserted against the defendants. The plaintiff later moved, inter alia, in effect, pursuant to CPLR 4404(a) to vacate the judgment dated August 3, 2018, and for a new trial against the defendants. In an order entered September 24, 2018, the court, among other things, denied that branch of the plaintiff's motion. The plaintiff appeals from the judgment entered August 3, 2018, and the order entered September 24, 2018.

"At 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" ( CPLR 4402 ). 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" ( Frankson v. Philip Morris Inc., 31 A.D.3d 372, 373, 818 N.Y.S.2d 772 ). 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, 509 N.Y.S.2d 603 [citation and internal quotation marks omitted]; see Frankson v. Philip Morris Inc., 31 A.D.3d at 373, 818 N.Y.S.2d 772 ; cf. CPLR 4404[a] ; Duman v. Scharf, 186 A.D.3d 672, 674, 129 N.Y.S.3d 137 ; Allen v. Uh, 82 A.D.3d 1025, 1025, 919 N.Y.S.2d 179 ).

Here, the plaintiff called an expert witness to testify as to the medical treatment provided by the defendants. Because portions of the expert's testimony purportedly fell outside the notice pursuant to CPLR 3101(d), the Supreme Court struck all of this expert's testimony concerning Inglis and Shukla. However, even assuming that portions of the expert's testimony fell outside the CPLR 3101(d) disclosure, it was error to strike all of his testimony concerning Inglis and Shukla. Further, to the extent that portions of the expert's testimony fell outside the CPLR 3101(d) disclosure, the relevant subject matter was raised in the bills of particulars and in the expert's affirmation submitted in opposition to the defendants' motions for summary judgment. Under these circumstances, the court improvidently struck the expert's testimony concerning the treatment provided by Inglis and Shukla (see Fishkin v. Massre, 286 A.D.2d 749, 730 N.Y.S.2d 724 ).

In addition, the Supreme Court sustained objections to questions of the same expert about whether Mosu departed from the accepted standard of care, for a lack of foundation. The...