Certified Question: Does a Vehicle and Traffic Law Indemnity/Contribution Claim Trump the "Exclusivity" Provision in the Workers’ Compensation Law?

In Hallock v. Koubek, the Second Circuit Court of Appeals has certified a question to the New York Court of Appeals involving the exclusivity of the Workers’ Compensation remedy and the Vehicle and Traffic Law.

The plaintiff was injured as a passenger in a car driven by a co-worker as they returned from a business conference.  The plaintiff could not pursue a claim against the driver of the vehicle in which he was injured because the Workers’ Compensation Law generally bars claims against an employer and co-workers.  Notably, though, the vehicle was owned by the co-worker’s spouse.

The plaintiff did bring claims against the driver and owner of the second vehicle involved in the collision.  Those defendants then brought a third-party claim against the owner of the first vehicle for indemnity and contribution.  The third-party claim was based on a Vehicle and Traffic Law provision that imposes statutory liability against an owner for the negligence of a driver permitted to use the vehicle.  

The third-party defendant moved for summary judgment, arguing that the Workers’ Compensation provision that barred claims against his spouse also inured to his benefit as the vehicle’s owner.  The defendants countered that the Vehicle and Traffic Law controlled, making the owner potentially liable even if the driver could not be sued.

In certifying this case to the Court of Appeals, the Second Circuit noted two lines of cases that made it unclear how the Court of Appeals would rule.  One line of cases suggested that the Workers’ Compensation exclusivity provision controls, precluding a contribution action against the vehicle’s owner.  In those cases, the prohibition on liability against the driver meant there was no derivative liability under the Vehicle and Traffic Law.

In another line of cases were two decisions that suggested an outcome was less than certain.  The Second Circuit pointed to a recent trial-level decision, which it found to be on all fours with the case at hand, that allowed a third-party contribution claim against the vehicle’s owner.  The other decision came from the Court of Appeals and it allowed a Vehicle and Traffic Law claim against a vehicle’s owner when the driver had diplomatic immunity from suit.  In the case involving diplomatic immunity, the Court of Appeals distinguished its prior and potentially conflicting Workers’ Compensation holdings.  Given these divergent cases, the Second Circuit decided it was necessary to seek guidance from the Court of Appeals.  

Fourth Department Med Mal Recap: Defendant Has To Turn Over Publically Available National Standards; Impeaching Jury Verdicts; and Impact of Prior Appeal on Current Appeal

Rawlins v. St. Joseph’s Hosp. Health Ctr.:

In this medical malpractice case, the plaintiff is seeking damages allegedly suffered by her infant during childbirth.  Plaintiff appealed from an order of the Supreme Court that denied thirty-seven of their fifty-six discovery requests. 

The Fourth Department determined that the Supreme Court improperly denied eight discovery requests.  The Fourth Department then modified the order to allow discovery of some of the requests immediately and requiring a hearing before the Supreme Court for others.  The defendant claimed three requests were unduly burdensome to produce, namely: a protocol entitled “Circulating Vaginal Delivery,” materials laying out criteria for determining whether neonatal encephalopathy occurred, and material with referral protocols for infants.  After determining that all three were “material and necessary,” the Court stated production was mandated as it was not unduly burdensome to the defendant.
 

Two of the eight improperly denied discovery requests involved national standards on fetal monitoring that the Court determined could be used to aid in establishing negligence.  Despite the fact that these records may be publicly available, the Court held that fact does not “preclude production of those records from a party” if the party possesses them.  The Court remitted the matter to the Supreme Court to determine whether defendants have the documents at issue.  The defendants claimed that they did not possess two other items, including discovery on cesarean sections and intrapartum and antepartum suctioning.  As such, the Fourth Department remitted these issues to be determined at a hearing as well.

The eight discovery request at issue involved the hospital’s “unredacted policies and procedures.”  During proceedings on the initial discovery order, the hospital claimed privilege as to certain information.  A court-appointed Referee agreed that privileged material would be exempt from discovery, but the extent of the privilege was undetermined.  Consequently, the Court directed the Supreme Court to review the information in chambers to determine what part of the “procedures and protocols” was indeed privileged.

Butterfield v. Caputo:

In this medical malpractice action, the jury returned a verdict against defendant Crouse Hospital, but in favor of defendant Dr. Caputo.  The jury found Dr. Caputo negligent, but that his negligence was not a “substantial factor” in causing plaintiffs injuries.  Plaintiff and Defendant Crouse Hospital appealed the jury’s verdict. 
 

The Fourth Department affirmed, explaining that the jury’s finding would be reversed “only when [negligence and proximate cause] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.”  Since, here, there was a “reasonable view” of the evidence that there was negligence without proximate cause, the verdict should stand.
 

In addition, the jury awarded $60,000 over a period of 30 years.  On post-trial motion, the plaintiff submitted affidavits from all six jurors that stated they had intended to award the plaintiff $60,000 per year for 30 years as opposed to a total of $60,000 over 30 years.  While the Fourth Department acknowledged that relying on juror affidavits is against public policy, they made the distinction that this was not an impeachment of a verdict, but rather a correction.  Furthermore, they determined this change in the verdict would not “deviate materially from what would be reasonable compensation.”
 

Judge Fahey dissented in part, agreeing with the majority against setting aside the verdict as to Dr. Caputo, but disagreeing on modifying the verdict against Crouse Hospital.  He explained that the only reason this allegedly surfaced was because the jury foreperson approached plaintiff’s counsel at a chance encounter at a basketball game about one month after the verdict.  In addition, Judge Fahey stated that unless circumstances are extraordinary, “juror affidavits may not be used to attack a jury verdict.”  In his view, this was not an exceptional circumstance as it was not a “ministerial error,” such as a foreperson entering the percentages of fault on the wrong line.  Instead, it was  a “jury’s mistaken impression” about how damages are awarded.

Wilk v. James:
 
In Wilk v. James, a medical malpractice case previously discussed on this blog, a decedent’s estate sued a hospital and treating doctors because they allegedly failed to diagnose an aortic dissection.  Decedent contacted his treating urologist on February 16, 2004 after he was diagnosed with kidney stones the previous day.  This doctor eventually referred him to the hospital based on his poor urinary retention.  Decedent failed to make a follow up appointment with the doctor after being told to do so, and two days later he was rushed to the hospital for emergency surgery because of a spinal epidural hematoma.  Decedent then had an additional surgery based on a re-accumulated clot and died two weeks later.  The death certificate listed cerebral infarct with herniation, aortic dissection and spinal cord infarct hematoma as conditions contributing to death.    This appeal dealt solely with summary judgment motions filed by the defendant doctors.  The Supreme Court denied defendant’s motion for summary judgment, but the Fourth Department has now reversed.
 

The Fourth Department determined that defendants met their initial burden by establishing “the absence of any departure from good and accepted medical practice [and] that any departure was not the proximate cause of [decedent]’s alleged injuries.”  This shifted the burden to the plaintiff to “raise triable issues of fact” through a physician’s affidavit.  The affidavit plaintiff’s expert submitted opined that defendants should have ordered a CT scan of the abdomen and pelvis on February 16, 2004 based on observance of the prior day’s CT scan which showed an enlarged kidney and could have led to a reasonable differential diagnosis of an acute infarct of the left kidney.  Plaintiff’s expert then concluded that based on this new CT scan, an aortic dissection diagnosis likely would have been made.
 

The Fourth Department determined that plaintiff expert’s assertion that defendant doctors were negligent “in failing to order a diagnostic test to rule out a urological condition that decedent did not have because that test may incidentally have revealed an underlying and unsuspected cardiothoracic condition” was “simply too attenuated to raise an issue of fact with respect to causation.”  In other words, the decision to not perform a test that may have only incidentally revealed a condition that was not being tested for is insufficient to establish a medical malpractice claim.  Thus, granting summary judgment to the defendants was appropriate and the Supreme Court was reversed.
 

Judge Fahey dissented, arguing that the majority’s position was inconsistent with its decision on the prior appeal.  Click here for our post describing the prior appeal.  The majority responded that “this appeal involved different defendants who had different obligations with respect to the decedent.”  In addition, they countered that the instant appeal presented evidence that was not raised on the prior appeal.

Court of Appeals Watch: Court to Resolve Conflict on Spousal Derivative Claims and the Relation Back Doctrine

Giambrone v. Kings Harbor Multicare Ctr.

In this medical malpractice action, Mr. Giambrone alleges that he developed a sacral wound after he underwent surgery at Westchester Square Hospital. Following surgery, he then underwent rehabilitation at defendant Kings Harbor, where his wound allegedly progressed to a Stage IV decubitus ulcer. Mr. Giambrone commenced this action against Kings Harbor in August 2009, at which time his wife was not named as a party.  In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square, in which his wife was named as a plaintiff and asserted a derivative claim for loss of consortium and spousal services. About seven weeks after the statute of limitations expired in the Kings Harbor action, he moved to amend the Kings Harbor complaint under CPLR 3025(b) to assert his wife’s derivative action. The Supreme Court granted the motion.

On March 21, 2013, the First Department affirmed adopting the Third Department’s position in Anderson v. Carney that the Supreme Court should be permitted to exercise the same discretion it has when considering whether to allow the addition of a plaintiff’s derivative cause of action. The Second and Fourth Departments, however, have taken an opposing view.  They have held that "a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f)."

The First Department has now granted leave to appeal to the Court of Appeals, where the Court of Appeals will have an opportunity to resolve this conflict between the Departments.