Med Mal Cases Heard This Week at the Court of Appeals

In Kowalski v. St. Francis Hospital and Health Centers, the plaintiff (with a blood alcohol content of .369) checked himself into St. Francis for detoxification. Kowalski later left the hospital unsupervised (and still highly intoxicated) and was hit by a car, rendering him quadriplegic. The plaintiff brought a medical malpractice action claiming that Dr. Chintapalli and his employer (Emergency Physician Services of New York) were negligent in not detaining him and supervising him sufficiently once admitted.

 

The defendants moved for summary judgment, explaining via medical expert affidavits, that the plaintiff could not have been involuntarily detained as he did not pose an imminent threat to others. The court, however, denied the motion based on expert affidavits from the plaintiff stating that the defendants should have searched for the plaintiff or called the police once he left the hospital in his intoxicated condition. The Second Department then reversed stating that the defendants "lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment." The Court of Appeals heard the case on Tuesday. Audio of the oral argument will be available on the Court’s website next week.

 

In James v. Wormuth, the plaintiff brought a medical malpractice action against Dr. Wormuth after he left a surgical wire in James’ chest during a lung biopsy. After James complained of pain, Dr. Wormuth removed the wire two months later. At trial, the plaintiff relied on res ipsa loquitur, instead of providing evidence that Dr. Wormuth was negligent in not initially removing the wire. The Supreme Court granted a directed verdict for the defense holding that res ispa loquitur did not apply because the wire was intentionally left in the patient after Dr. Wormuth decided it was in James’ best medical interest to leave the wire in, rather than keep her under general anesthesia longer and make a larger incision to remove it. In a 3-2 decision, the Fourth Department affirmed since the plaintiff failed to argue at trial that leaving the wire in her thorax was unintentional. The dissent, however, argued that res ipsa loquitur did apply because the wire should never have been left inside the plaintiff’s chest.

 

The Court of Appeals heard oral argument on both cases on Tuesday. On Thursday, the Court also heard reargument on Applewhite v. Accuhealth. At issue in Applewhite is whether the City was performing a governmental function giving rise to a special duty to the plaintiff when it sent a Basic Life Support (BLS) ambulance in response to a 911 call and, whether, if the City assumed a special duty, the plaintiff can establish justifiable reliance because in response to the plaintiff’s request for immediate transport to the hospital, the EMT’s said they should wait for an Advanced Life Support (ALS) ambulance. Audio of each of the oral arguments will be available on the Court’s website next week. 

Court of Appeals Holds Failure To Submit Proof With Application For Default Judgment Is A Non-Jurisdictional Defect

In Manhattan Telecommunications Corp. v. H & A Locksmith, Inc., the Court of Appeals addressed whether failing to submit “proof of the facts constituting the claim” under CPLR 3215(f) is a “jurisdictional” defect that would make a judgment entered on default a nullity.  At issue here was the plaintiff’s failure to attach proof that a corporate officer was individually liable under an alleged written contract to provide telephone services to the corporate defendants.

The Court of Appeals resolved a split among the Departments, holding that failure to comply with this provision of CPLR 3215(f) is a non-jurisdictional defect.  As a result, parties seeking relief because of a failure to give “proof of the facts” must still show they are entitled to relief from that judgment, for example, as provided in CPLR 5015.

Court Orders New Trial Based on Improper Conduct of Trial Justice

In Porcelli v. Northern Westchester Hospital Center, the plaintiffs sued Dr. Tsai and Northern Westchester Hospital Center for alleged medical malpractice after their infant daughter developed respiratory problems and a pharyngeal tear when Dr. Tsai inserted an endotracheal tube to check for the presence of meconium after the birth. The court dismissed the claim against the hospital pursuant to CPLR 4401, and the jury returned a verdict for Dr. Tsai. However, the Second Department reversed and granted a new trial on the issue of liability against Dr. Tsai, because of the excessive intervention and improper conduct by the trial justice. The court held that the trial justice "unnecessarily injected personality issues into the case" and "demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel." For example, among other things, the trial justice likened plaintiff’s council to "a leech on a horse" in the presence of the jury. As a result, the court concluded the jury could not have considered the issues at trial in an unprejudiced and fair manner, and ordered a new trial against Dr. Tsai. In addition, the Court reinstated the claim against the hospital for vicarious liability because the hospital’s 4401 motion did not request dismissal of the vicarious liability claim. Since the Court reinstated the cause of action against Dr. Tsai, the Court reinstated the vicarious liability claim against the Hospital.

 

   

Court Finds Repeated Acts of Molestation Constitute Separate Occurrences Under Insurance Policies

In Roman Catholic Diocese of Brooklyn v. National Union Fire Insurance Co. of Pittsburgh, PA., a declaratory judgment action, the Court of Appeals addressed four insurance coverage issues raised by repeated instances of sexual molestation of one child by a Queens priest from August 1996 to May 2002.  In doing so, the Court of Appeals issued three opinions and Judge Lippman took no part.  The result was Judge Rivera writing for a three-judge plurality, Judge Smith issuing a concurrence in the outcome, and Judge Graffeo issuing a partial concurrence and partial dissent.  Judges Smith and Graffeo, writing separately, joined the plurality on only two of the four issues, leaving the remainder without precedential weight.

The Diocese brought this action to recover from its insurers after settling the child’s molestation claims for $2 million and “additional consideration.”  The principal dispute concerned a $250,000 self-insured retention (“SIR”) applicable to each occurrence and to each of multiple policies.  The parties contested (1) whether defenses concerning the SIR or allocation among the policies and insurers were waived when they were not mentioned in a disclaimer letter; (2) whether the claims of molestation should be considered a single occurrence or multiple occurrences; (3) how many SIRs the Diocese would need to exhaust; and (4) whether the Diocese could recover on a joint and several basis or pro rata among the insurers.

First, the Court of Appeals considered the argument that National Union waived its defense of the self-insured retention because it was not mentioned in a disclaimer letter.  The Court disposed of the argument, holding that National Union was not obligated to raise the SIR issue in its disclaimer letter because it was a limit on liability and not an exclusion.  This part of the plurality’s opinion essentially confirmed earlier Court of Appeals case law that coverage cannot be created by estoppel.  Judges Smith and Graffeo joined this part of the opinion.

Second, the plurality reasoned that the claims of molestation were multiple occurrences rather than a single occurrence under the policy.  Judge Rivera wrote that the Court applies the “unfortunate event” test when the policies themselves do not indicate an intent to aggregate separate incidents into a single occurrence.  In that test, the Court looks to whether the claims share a close “temporal and spatial relationship” and whether the claims were part of a “singular causal continuum.”  The plurality noted throughout its opinion that the claims of molestation were distinct, spanned six years, and occurred in various and unique locations such as the rectory, a vehicle, as well as more than one home.  Thus, the claims did not share a close temporal and spatial relationship, and they were not part of a singular causal continuum.  Judges Smith and Graffeo disagreed, leaving the plurality short of the four votes needed to create precedent for finding repeated instances of sexual misconduct as multiple occurrences.

Third, the plurality decided that the Diocese would be required to exhaust a SIR for each occurrence under an implicated policy.  Looking to the policy, the plurality noted that a SIR “shall apply separately to each occurrence” and only to “occurrences covered under [the] policy” (alteration in original).  Judge Graffeo, arguing that there was only a single occurrence under the policy, concluded that the Diocese needed to exhaust only a single SIR, regardless of the number of policy periods through which that occurrence carried.  Judge Smith, also arguing for a single occurrence, concluded however that a SIR should be exhausted for each policy year in which the single occurrence and injury continued. 

Summing up the number of SIRs to be applied, Judge Smith put it succinctly: “To clarify the point, imagine a case where a priest committed twenty acts of abuse of one victim over five years, and five one-year policies were successively in force, each with a self-insured retention.  How many retentions are to be applied?  The plurality’s logic gives the answer twenty.  Judge Graffeo would say one.  The Ninth and Fifth Circuits would say five, and I think they are correct.”  As none of the opinions garnered the required four votes, this opinion also lacks precedential weight.

Fourth, and finally, the Court unanimously agreed that the Diocese could not recover for the repeated claims of molestation by proceeding against one insurer on a joint and several theory of liability.  Under such a theory, the insured could recover against one insurer and the insurer could then proceed against remaining insurers.  The plurality, joined by Judges Smith and Graffeo, instead decided that the proper means of recovery would be to allocate the losses pro rata.