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.

Appellate Division Upholds Decision Blocking New York City "Big-Soda Ban"

For a copy of the First Department's decision upholding an order striking down the City's ban on sugary drinks over 16 ounces, click here.

 

Email Confirmation Constitutes Binding Settlement Agreement

In Forcelli v. Gelco, the Appellate Division, Second Department held that emails can be treated as enforceable agreements satisfying the requirements of CPLR 2104.  CPLR 2104 provides that an agreement is not binding “unless it is in a writing subscribed by” the party or the party’s attorney.  In Forcelli, a claims adjuster for one of the defendants sent an email to the plaintiff confirming that the plaintiff “accepted my offer of $230,000 to settle this case.”  In addition to holding that the email constituted a writing under CPLR 2104, the Court also held that the e-mail satisfied the “subscribed” requirement of 2104.  According to the Court, the email was “subscribed” because the claims adjuster’s name was typed at the end “under circumstances manifesting an intent that the name be treated as a signature.”
 

Two Recent Wrongful Death Decisions with Dissents

Rose v. Conte:

In this wrongful death action based upon medical malpractice, the plaintiff alleged Dr. Conte deviated from accepted medical standards when he failed to order a CT scan or a gastrointestinal work-up in February of 2001 when plaintiff was complaining of pain and other abdominal symptoms.  As a result, plaintiff claimed that an abdominal tumor was not identified until March 2002, by which time the plaintiff was “deprived of the opportunity for a cure.”  When surgery was performed in May 2002, the tumor could only be partially resected leading, despite continued treatment, to the plaintiff’s death in September 2007.

At trial, the jury returned a verdict in favor of the decedent but the Supreme Court set aside the verdict and granted a new trial.  The First Department reversed, stating, “it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence.”  The First Department interpreted it as a “battle of the experts,” whose credibility is “peculiarly within the province of the jury.”

Judge Freedman, however, issued a dissent.  He argued that the verdict was against the weight of the evidence, especially since the decedent refused Dr. Conte’s advice starting from September 2001 to go for a full gastrointestinal work-up.  In addition, multiple experts called by the defense explained that the tumor was an extra-gastrointestinal stromal tumor (EGIST), which would not have been visible in February 2001 since it evades early detection and grows rapidly.  Judge Freedman also noted that plaintiff’s own expert, Dr. Singer, called the tumor an EGIST in expert disclosure but then changed his testimony for trial to claim the tumor was just a gastrointestinal stromal tumor (GIST), which is more easily detected sooner. 

Wilk v. James:

In this medical malpractice and wrongful death action, defendants allegedly failed to timely diagnose and treat plaintiff’s aortic dissection.  Plaintiff went to one of the defendant hospitals (Kaleida) on two separate occasions only two days apart, both times complaining of severe back pain.  While a CT scan with contrast would have allegedly led to an aortic dissection diagnosis, the doctors at Kaleida ordered no tests on the initial visit on February 13, 2004 and ordered only a CT without contrast on the second visit on February 15th.  Plaintiff subsequently visited another defendant, Mercy Ambulatory Care Center, in which the documentation incorrectly reflected the plaintiff’s condition, and completely omitted the fact that he was in the hospital twice in the previous two days for severe back pain.  On February 18th, the plaintiff returned to Kaleida with increased back pain and the inability to feel his legs.  With massive internal bleeding, he subsequently died on March 3rd.

Defendants moved for summary judgment, which the Supreme Court denied finding that “issues of fact” were raised by plaintiff’s expert affidavit.  After reviewing all medical records, plaintiff’s expert concluded that the doctor at Kaleida deviated from accepted medical practice by failing to take an accurate history, failing to pursue an aortic dissection as a differential diagnosis and failing to order a CT scan with contrast.  The expert stated that these departures were a substantial factor in the plaintiff’s injuries and eventual death, raising issues of fact regarding causation.  In addition, the expert opined that Mercy’s failure to accurately document plaintiff’s history and symptoms was a deviation from the accepted standards of medical care.  Neither hospital argued they were not vicariously liable for their doctors, so the defense forfeited those arguments.  The Fourth Department affirmed, explaining that the contradictory evidence “supports our conclusion that there is a clear issue of fact.”

Judge Peradotto dissented, arguing that the plaintiff’s expert affidavit’s were “conclusory and did not directly address or refute the prima facie showing in the detailed affidavits of defendants’ experts.”  In particular, Judge Peradotto took issue with the idea that the aortic dissection was present in the earlier hospital visits, as the death certificate listed the aortic dissection as occurring only a few days prior to the plaintiff’s death and nothing in the medical record indicated its presence prior to that.
 

Fourth Department Holds That Second Prong of Lack of Informed Consent Test Does Not Require Expert Testimony

In order to establish a lack of informed consent claim in a medical malpractice action, a plaintiff needs to prove (1) that the medical practitioner failed to disclose the material risks, benefits and alternatives to the surgery, which would have been disclosed by a reasonable medical practitioner and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed (Public Health Law §　2805-d).　Furthermore, CPLR 4401-a requires medical malpractice actions based solely on lack of informed consent to be supported by expert medical testimony "in support of the alleged qualitative insufficiency of the consent."

 

In Gray v. Williams, the defendant claimed that CPLR 4401-a required expert testimony as to both parts of the informed consent analysis.　The Fourth Department disagreed holding that "expert testimony concerning what a reasonable person would have done in plaintiff’s position is not necessary to maintain a cause of action premised upon lack of informed consent." This holding is consistent with its prior decisions, as well as with the First and Third Departments.  The Second Department's position on this issue, however, is unclear.  　　　　
 

In Faulknor v. Shnayerson (273 A.D.2d 271 [2000]), the Second Department treated it as though expert testimony was necessary for both parts of the informed consent test.　There, the Court held "a case of malpractice based on lack of informed consent may not be submitted to a jury in the absence of expert medical testimony to support the qualitative insufficiency of the consent i.e., that a reasonably prudent person in the patient’s position would not have undergone the treatment if fully informed."　While there has been case law at the trial level that recognizes the apparent disparity between the Departments (Tullo v. Tartack, 325/98, 2002 WL 31925590 [N.Y. Sup. Ct. July 24, 2002]), the Second Department has never subsequently relied on Faulknor for this proposition.  In addition, some subsequent cases seem to imply that the Second Department does not require expert testimony on the second prong of the analysis, but make no mention of Faulknor (see e.g., Sarwan v. Portnoy, 51 A.D.3d 655 [2nd Dept. 2008]).  Thus, subsequent cases will have to clarify where the Second Department falls on this issue.