Molina v. Goldberg

215 N.Y.S.3d 434

Antonio MOLINA IV, etc., respondent,

v.Randy A. GOLDBERG, et al., defendants,Westchester Health Care Corporation, et al., appellants.

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

Argued—December 15, 2023

July 17, 2024

APPEAL by the defendants Westchester Health Care Corporation and Westchester Medical Center, in an action, inter alia, to recover damages for medical malpractice and wrongful death, from a judgment of the Supreme Court (Lawrence H. Ecker, J.), entered September 10, 2019, in Westchester County. The judgment, insofar as appealed from, upon a jury verdict, and upon an order of the same court dated June 5, 2018, among other things, denying those branches of the motion of the defendants Westchester Health Care Corporation and Westchester Medical Center which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of the plaintiff and against them and for judgment as a matter of law dismissing the complaint insofar as asserted against them or, in the alternative, to set aside that portion of the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the plaintiff and against them in the total sum of $3,872,163.58.

Vigorito, Barker, Patterson, Nichols & Porter, LLP, Valhalla, NY (Leilani Rodriguez of counsel), for appellants.

Silberstein, Awad & Miklos, P.C., Garden City, NY (Robert A. Miklos and Kenneth M. Tuccillo of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.

OPINION & ORDER

MALTESE, J.

This appeal presents, as an issue of first impression in this Court, the issue of whether the plaintiff was properly awarded damages for the decedent’s "pre-impact terror," delineated on the verdict sheet as emotional pain and suffering. We conclude that the award of damages for pre-impact terror is inappropriate in this medical malpractice and wrongful death action and that this award was duplicative of the award of damages for pain and suffering and loss of enjoyment of life and should be set aside and vacated.

On January 4, 2008, the plaintiff’s decedent came into the care of the defendants Westchester Health Care Corporation and Westchester Medical Center (hereinafter together the WMC defendants) with complaints of, inter alia, coughing up blood, shortness of breath, and mild burning in his chest. During the late evening hours of January 6, 2008, into the early morning hours of January 7, 2008, the decedent suffered a heart attack while he was in the WMC defendants’ care. When a cardiac catheterization was performed in the afternoon on January 7, 2008, doctors found, among other things, that one of the vessels in the decedent’s heart was completely obstructed, and the insertion of a stent was unsuccessful. Thereafter, the decedent returned to different hospitals multiple times over the next three years for treatment for his congestive heart failure, which included the placement of a left ventricular assist device (hereinafter LVAD) in June 2011 at Yale–New Haven Hospital in Connecticut. The decedent developed complications from the LVAD and died on October 27, 2011, at Yale–New Haven Hospital.

In July 2013, the plaintiff commenced this action, among other things, to recover damages for medical malpractice and wrongful death against, among others, the WMC defendants. The plaintiff alleged, inter alia, that the WMC defendants’ internal medicine residents and cardiology fellow departed from good and accepted standards of medical practice by failing to timely diagnose and treat the decedent’s heart attack. After a trial, the jury returned a verdict in favor of the plaintiff and against, among others, the WMC defendants on the issue of liability. The jury awarded damages to the plaintiff, among other things, for "[e]motional pain and suffering [the decedent] endured between the moment [he] believed that he was going to die and the moment [he] died," characterized by the plaintiff as pre-impact terror, in the sum of $1,000,000 and (as a separate item of damages) for the decedent’s "[p]ain and suffering and loss of enjoyment of life … from the moment of the heart attack to the moment of death" for an additional sum of $1,000,000. Thereafter, the WMC defendants moved, inter alia, pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of the plaintiff and against them and for judgment as a matter of law dismissing the complaint insofar as asserted against them or, in the alternative, to set aside that portion of the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied those branches of the WMC defendants’ motion and entered a judgment, among other things, in favor of the plaintiff and against the WMC defendants in the total sum of $3,872,163.58. The WMC defendants appeal from the judgment.

Legal Sufficiency and Weight of the Evidence

[1] "A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Velasquez v. Ruiz, 203 A.D.3d 786, 788, 164 N.Y.S.3d 188 [internal quotation marks omitted]; see Gaspard v. Aronoff, 153 A.D.3d 795, 796, 61 N.Y.S.3d 240).

[2–5] "In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries" (Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176; see Pezulich v. Grecco, 206 A.D.3d 827, 828, 169 N.Y.S.3d 680).

"Where hospital staff, such as resident physicians and nurses, have participated in the treatment of the patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees merely carried out the private attending physician’s orders, except when the hospital staff follows orders knowing that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, the hospital’s employees have committed independent acts of negligence, or the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital" (Bhuiyan v. Germain, 211 A.D.3d 667, 670, 179 N.Y.S.3d 339 [internal quotation marks omitted]; see Pezulich v. Grecco, 206 A.D.3d at 829, 169 N.Y.S.3d 680).

"Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury" (Grullon v. Thoracic Surgical, P.C., 208 A.D.3d 1163, 1164, 174 N.Y.S.3d 747 [internal quotation marks omitted]; see Velasquez v. Ruiz, 203 A.D.3d at 788, 164 N.Y.S.3d 188). "A plaintiff’s evidence of proximate cause may be found legally sufficient … as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury" (Velasquez v. Ruiz, 203 A.D.3d at 788, 164 N.Y.S.3d 188 [internal quotation marks omitted]; see Goldberg v. Horowitz, 73 A.D.3d 691, 694, 901 N.Y.S.2d 95).

[6] Here, the plaintiff’s evidence at trial was legally sufficient to establish that the WMC defendants’ internal medicine residents and cardiology fellow departed from good and accepted standards of medical practice by committing independent acts of negligence that were not at the direction of the attending physicians and that the departures were a proximate cause of the decedent’s injuries. The plaintiff presented sufficient evidence from which a reasonable person could conclude that it was more probable than not that the departures of the WMC defendants’ internal medicine residents and cardiology fellow were a substantial factor in causing the decedent’s injuries. The jury could reasonably infer that the failure of the WMC defendants’ internal medicine residents, among other things, to report a correct interpretation of the decedent’s electrocardiogram to the attending physician, order repeated electrocardiogram and cardiac enzyme testing for the decedent in response to his complaints of chest pain and numbness in his extremity, and ensure that the decedent received a timely cardiology consultation, and the failure of the WMC defendants’ cardiology fellow to call an attending physician to request an emergency cardiac catheterization and transfer the decedent to the intensive care unit earlier, diminished the decedent’s chance of a better outcome and increased his injuries.

[7–9] Further, the jury verdict against the WMC defendants was not contrary to the weight of the evidence. "A jury verdict in favor of [the successful party] should not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the [opposing party’s] favor that the verdict could not have been reached on any fair interpretation of the evidence" (Berlich v. Maimonides Med. Ctr., 208 A.D.3d 1148, 1149, 175 N.Y.S.3d 95 [internal quotation marks omitted]; see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163). "It is for the jury to make determinations as to the credibility of the witnesses, and deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Rucigay v. Wyckoff Hgts. Med. Ctr., 194 A.D.3d 865, 868, 149 N.Y.S.3d 148 [internal quotation marks omitted]; see Ditoro v. Richmond Univ. Med. Ctr., 202 A.D.3d 912, 913, 159 N.Y.S.3d 690). "[W]here conflicting expert testimony is presented, the jury is...