The following papers were read on the motions:Notice of Motion/Affirmation in Support/Exhibits A-C (docs 261-265)Reply Affirmation/Exhibit D (docs 281-282)Notice of Motion/Affirmation in Support/Exhibit A (docs 268-270)Reply Affirmation/Exhibit A (docs 279-280)Affirmation in Opp (doc 276)Amended Decision and Order In this action sounding in medical malpractice, defendant Westchester Medical Center (WMC) moves, under motion sequence number 008, for an order, pursuant to CPLR 4404 (a), granting the following relief: (1) setting aside the jury’s verdict in favor of plaintiff and directing judgment in favor of WMC; or (2) setting aside the jury’s verdict in favor of plaintiff and directing a new trial on all issues; (3) setting aside the jury’s verdict in favor of plaintiff and directing a new trial on the issue of damages, unless plaintiff stipulates to a substantial reduction of the jury’s awards; and (4) granting a hearing, pursuant to CPLR 4545, 4546 and 50-A, for the purpose of identifying collateral sources and structuring a judgment; and (5) declaring that any judgment entered reflect that portion of the award that provides for future medical expenses to be paid in accordance with Public Health Law §§2999-g through 2999-j. Defendants Michael Kessler, M.D. (Kessler), Geetha Rajendran, M.D. (Rajendran) and Advanced Ob/Gyn Associates (Advanced Ob/Gyn) jointly move, under motion sequence number 009, for orders, pursuant to CPLR 4404 (a), 5031 and 5501, granting the following relief: (1) setting aside the jury’s verdict and awarding judgment to defendants as a matter of law, or directing a new trial on the ground that the verdict was not based on a rational view of the evidence, or was contrary to the weight of the evidence; or (2) setting aside the jury’s verdict and directing a new trial: or (3) conditionally reducing the awards for past and future pain and suffering because they deviate materially from what would be reasonable compensation; and (4) granting a hearing, pursuant to CPLR 4545, 4546 and 50-A, for the purpose of identifying collateral sources and structuring a judgment; (5) declaring that any judgment entered reflect that portion of the award that provides for future medical expenses to be paid in accordance with Public Health Law §§2999-g through 2999-j; and (6) staying the entry of judgment pending a decision on this motion and a hearing to determine the proper calculation of the judgment under CPLR 5031. The motions, under motion sequence numbers 008 and 009, are consolidated for disposition and upon the foregoing papers, the motions are decided as set forth below.The theory of plaintiff’s case is that the proximate cause of her son’s preterm delivery and permanent preterm birth related injuries and deficits were Kessler and/or Rajendran’s respective departures from accepted medical practice by their failures to offer a cerclage to address her cervical insufficiency during any of her three hospital visits and/or admissions in July 2010. Plaintiff seeks to hold WMC vicariously liable for the negligent acts and/or omissions of the defendant physicians.The case was tried before a jury. During the course of the trial, the parties produced evidence relating to the central issues of: (1) whether Rajendran departed from accepted medical practice by failing to offer plaintiff Sylvia Green (Green) a cerclage during the July 9-10 admission; (2) whether Kessler departed from accepted medical practice by failing to timely obtain a maternal fetal medicine (MFM) consult during the July 13-14 admission and during the July 15-16 admission; (3) whether such departures were the proximate cause of the preterm delivery of plaintiff’s son at 24 weeks gestation, and his related injuries and deficits; and (4) whether Green reasonably believed, based on the words or conduct of WMC, that Rajendran and Kessler were employees/agents of WMC, and accepted their services in reliance on the perceived relationship, and not in reliance upon the skill of Rajendran and Kessler. The jury’s verdict, as recorded in the extract of May 17, 2018, provides in relevant part:Rajendran departed from accepted practice by not offering Green a cerclage during her July 9-10, 2010 admission, and that such departure was a proximate cause of the infant plaintiff’s injuries.Kessler departed from accepted practice by failing to timely obtain a MFM consult during Green’s July 13-14, and 15-16, 2010 admissions, and that such departure was a proximate cause of the infant plaintiff’s injuries.The jury apportioned fault to Rajendran and Kessler equally.Green reasonably believed, based on the words or conduct of WMC, that Rajendran and Kessler were employees or agents of WMC, and that she accepted their services in reliance upon the perceived relationship between these physicians and WMC, and not in reliance upon their skills as physicians.The jury awarded:$5 million for past pain and suffering;$15 million for future pain and suffering for 69 years;Future lost earnings in an annual amount of $113,000 for 39 years commencing on July 1, 2032;Home care (until age 21) in the annual amount of $54,000 for 13.17 years;Residential/Home care (starting at age 21) in the annual amount of $163, 199 for 56 years;Physical therapy in the annual amount of $13,104 for 13.17 years;Occupational therapy in the annual amount of $17,004 for 13.17 years;Speech therapy in the annual amount of $17,784 for 13.17 years.As to defendants’ contentions that the verdict should be set aside because it was not based on a rational view of the evidence, or was contrary to the weight of the evidence, it is well settled that: “a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Victoria H. v Board of Educ. of City of N.Y., 129 AD3d 912, 912 [2d Dept 2015] [internal quotation marks and citations omitted]). Furthermore:“[f]or a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence…[it must] first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial. The criteria to be applied in making this assessment are essentially those required of a Trial Judge asked to direct a verdict. It is a basic principle of our law that it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict. Similarly, in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence”(Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978] [internal quotation marks and citations omitted]).Having presided at the trial, and upon review of the evidence in conjunction with the instant motions, the Court finds that the jury’s verdict on liability was neither against the weight of the evidence, nor was it inconsistent with a fair interpretation of the evidence. In circumstances such as this, “[w]here…conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” (Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588 [2d Dept 2011]). To find, as defendants ask, that the jury’s verdict was unsupported or against the weight of the evidence presented, would require the Court to find that plaintiff’s experts were not worthy of belief. This Court, having heard the evidence, is not willing to make that finding (see Loughman v Flint Co., 132 AD2d 507, 510 [1s Dept 1987]).As to those aspects of the consolidated motions which seek a reduction of the jury’s awards on the ground that the awards for past pain and suffering ($5 million), future pain and suffering ($15 million over 69 years), lost earnings ($113,000 for 39 years) and future medical expenses (as broken down above) are excessive, the motion is resolved as follows.In New York, “[t]he amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation” (Peterson v MTA, 155 AD3d 795, 798 [2nd Dept 2017]), and “[t]he reasonableness of compensation must be measured against relevant precedent of comparable cases” (Halsey v New York City Tr. Auth., 114 AD3d 726, 727 [2014] [internal quotation marks and citations omitted]).In Sence v Atoynatan (142 AD3d 600 [2d Dept 2016]); a medical malpractice case cited by both plaintiff and defendants involved a large jury verdict, including $4 million for past pain and suffering and $7,015,000 for future pain and suffering. The case centered on evidence that an infant sustained severe and permanent brain damage; with related deficits, as a result of the defendants’ deviations from accepted standards of medical care. On appeal, the Appellate Division, Second Department, finding that the award for past pain and suffering deviated materially from what would be reasonable compensation, modified the entered judgment, and directed the parties to stipulate to reducing the amount to $2 million within a given period of time, and in the absence of such stipulation, remitting the matter to trial court for a new trial on damages on the question of past pain and suffering.While plaintiff cites to a series of cases which precede Sence by not less than 10 years, and prior to the creation of the New York Medical Indemnity Fund (MIF) in 2011, defendants point to Reilly v St. Charles Hosp. & Rehabilitation Center (143 AD3d 692 [2d Dept 2016]),1 another medical malpractice action involving a jury finding of liability for the severe birth-related neurological injuries sustained by an infant plaintiff. The Reilly appeal was decided by the Appellate Division, Second Department approximately two months after Sence, albeit by a different panel. In its decision, the Appellate Court held, in relevant part, that the awards for past and future pain and suffering ($10 million past, and $82.5 million future, for a total of $92.5 million) were excessive and deviated materially from what would be reasonable compensation. After downward modification, the awards came to $750,000 past and $3.5 million future for a total of $4,250,000. Defendants argue that, because the neurologic injuries sustained by the instant infant plaintiff are less severe than those sustained by the Reilly infant plaintiff, the damages awards must be reduced to a commensurate level.In view of the nature and extent of the injuries sustained by the infant in this action, and upon comparison to the pain and suffering awards rendered in this action to the pain and suffering awards rendered in other recent medical malpractice cases involving infants who sustained brain injury at birth, the Court finds that the awards of $5 million (past) and $15 million (future) materially deviate from what would be considered reasonable compensation (see Halsey v New York City Tr. Auth.; Quijano v American Tr. Ins. Co., 155 AD3d 981, 983-984 [2d Dept 2017]). It is suggested that the parties consider stipulating to reducing the awards to $2 million for past pain and suffering and $7 million for future pain and suffering, sums which would be more reasonable in light of other similar medical malpractice actions.As to the jury’s award for future lost earning, defendants’ motions are denied, as the evidence presented by plaintiff’s expert was substantial and compelling, and defendants, who did not offer an expert to address this issue, failed to adequately refute plaintiff’s evidence. The motions to set aside the balance of the jury award are also denied, as the awards, to the extent they are not reduced by virtue of the MIF,2 which provides funds for future health care costs associated with birth-related neurological injuries resulting from medical malpractice, are supported by the evidence.Regarding the jury’s finding against WMC on the question of vicarious liability, it is well settled that a medical facility, such as WMC, may be held liable, under the theory of vicarious liability, for the negligent acts or omissions of its employees, but not those of independent contractors/physicians who are not in its employ. It is also well settled that a hospital or medical facility (a principal) can, under the theory of apparent agency, and under certain circumstances, be held liable for the negligent acts or omissions of independent contractors/physicians who are not in its employ (see Hill v St. Clare’s Hosp., 67 NY2d 72, 79-81 [1986]).“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority” to act on behalf of the principal (Hallock v State of New York, 64 NY2d 224, 231 [1984]; see Merrell-Benco Agency, LLC v HSBC Bank USA. 20 AD3d 605, 608 [2005], lv dismissed and denied 6 NY3d 742 [2005]). A plaintiff seeking to hold a medical facility vicariously liable for the acts or omissions of a physician not in its employ must show that he or she reasonably relied on the appearance of authority based on “some misleading conduct on the part of the principal — not the agent” (Ford v Unity Hosp., 32 NY2d 464, 473 [1973]; see Merrell-Benco Agency, LLC v HSBC Bank USA, supra), and that he or she accepted the services of the ostensible agent in reliance, not upon that person’s skill, but based on his or her relationship with the principal (see Hill v St. Clare’s Hosp., 67 NY2d at 82; Nagengast v Samaritan Hosp., 211 AD2d 878, 880 [1995]).Under the leading case of Mduba v Benedictine Hosp. (52 AD2d 450 [3d Dept 1976]), the appellate court addressed the question of vicarious liability, and citing the Restatement of Torts,3 determined that, because the defendant hospital held itself out to the public as a facility that furnishes doctors, staff and facilities for emergency treatment, it was:“under a duty to perform those services and is liable for the negligent performance of those services by the doctors and staff it hired and furnished to [the plaintiff]. Certainly, the person who avails himself of hospital facilities has a right to expect satisfactory treatment from any personnel who are furnished by the hospital”(id. at 454).Upon a review of the evidence, the Court finds no cause to vacate the jury verdict ascribing vicarious liability to WMC for the actions of Kessler and Rajendran. The evidence presented to the jury was that Green presented to nonparty ob/gyn Dr. Helen Hostin (Dr. Hostin) on July 1, 2010, with complaints of right lower quadrant pain. Dr. Hostin referred Green to a maternal fetal medicine (MFM) specialist for an ultrasound and evaluation, and based on these results together with her own examination of Green several days later on July 6, 2010, Dr. Hostin admitted her to Nyack Hospital. Green was treated at Nyack Hospital until July 9, 2010, when Dr. Hostin transferred her, by ambulance, to WMC, because it was better equipped to treat Green’s symptoms and a significantly premature infant.Upon her arrival at WMC, Green was seen by Rajendran, an MFM specialist. On the evening of July 10, 2010, Green, who was not offered a cerclage by Rajendran, was subsequently discharged by Kessler (who did not actually see or examine her), and a staff nurse gave her an appointment to see Rajendran approximately one week later. On the evening of July 13, Green, who was experiencing certain symptoms (some spotting/bleeding) went to WMC. She was discharged several hours later (at approximately 3:30 a.m., on July 14, 2010) by Kessler, who was on call, but who did not actually see or examine her. On the evening of July 15, 2010, Green presented to WMC’s emergency room complaining of contractions and vaginal spotting. Kessler, who was again on call, examined her, and admitted her to labor and delivery. Rajendran saw Green at approximately 9:00 a.m., the next morning, and spoke with her about the circumstances surrounding her preterm labor. The infant plaintiff, who was born at approximately 10:40 a.m., was delivered by Kessler.WMC argues that, because the treatment Green received from Rajendran and from Kessler was initiated by her private physician, Dr. Hostin, who had advised Green that she (Dr. Hostin) was going to contact her “colleagues” at WMC, the logical conclusion is that Green’s private physician was referring her to private attending physicians at WMC. WMC also points to the fact that Green was given a follow-up appointment with Rajendran at Rajendran’s off-premises office as further evidence that Green should have been aware that Rajendran was not on WMC’s staff of employees. Finally, WMC argues that the inclusion of WMC’s name on the letterhead of forms provided to Green to fill out with respect to the different medical services being provided to her, is inadequate to establish that either Kessler or Rajendran was acting on its behalf, sufficient to confer an agency relationship.Although neither Rajendran nor Kessler were actually employed by WMC, the jury made a determination that the circumstances surrounding Green’s care and treatment at WMC were sufficient to find that she could have reasonably believed that these physicians were employees or agents of WMC. Supporting the view that Green reasonably believed that, when she received treatment from Rajendran and Kessler, she was being treated by WMC employees, is Rajendran’s trial testimony that: (1) when a patient comes to the hospital and needs a consult by an MFM, the MFM who attends that patient is the MFM on duty at that particular time (tr at 305); (2) she (Rajendran) was an employee of WMC (tr at 109), which she changed several days later during cross examination; (3) she was uncertain whether Advanced Ob/Gyn was run by employees of WMC (tr at 306); and (4) it was her understanding that Advanced Ob/Gyn was the faculty practice for WMC, and the teaching faculty for the hospital (tr at 305). Kessler was also unable to state with certainty the nature of his relationship with WMC, testifying that Advanced Ob/Gyn was “a group created just to be, I guess, a subgroup of the hospital,” when he was asked whether he was aware in 2010, of the exact affiliation between the group and WMC (tr at 138). Moreover, Dr. Blanchette, whose pretrial deposition testimony was, in part, read into the record during trial, provided evidence about the close nature of the relationship between WMC and the individual defendants when he acknowledged that he was, simultaneously, the director of Ob/Gyn at WMC and the director of Advanced Ob/Gyn (tr at 1052).In rendering its verdict, the jury might have also considered the facts that: (1) Green was brought to WMC by ambulance from Nyack Hospital; (2) Green was sent to WMC for the specialized prenatal services it could provide, and not for treatment by any particular physician, regardless of whether Dr. Hostin told her that she was going to contact her “colleagues” at WMC; (3) when asked what her understanding was as to where the doctors who treated her were working, Green stated that she believed them to be working for WMC, because that was where she was being cared for; (4) Green was treated at WMC by physicians assigned to her on the basis of their scheduled shifts/on call status at WMC, and not because she chose either of them, had a prior relationship with either of them, or was a private patient of either of them; (5) prior to the evening of July 15, 2010, Green had never met Kessler, the physician who discharged her twice without ever speaking with her or examining her; (6) it was WMC staff, and not Green, that set up the appointment for her to see Rajendran off-premises (an appointment she never kept because she delivered her son days before the scheduled appointment); (7) the consent forms displaying the WMC letterhead, which were given to Green by WMC staff, state that Green was authorizing Rajendran and Kessler and “associates or assistants of his/her [the physician's] choice at Westchester Medical Center (‘WMC’) to perform” certain procedures on her, without any explanation regarding the relationship between the facility, the treaters and the medical services being authorized and provided; and (8) neither Kessler; nor Rajendran, nor WMC offered proof that they made any effort to dispel any (mis)understanding Green might have had as to the nature of their professional relationship. Based on the evidence before the jury, the Court cannot find that the jury’s finding of vicarious liability is against the weight of the evidence.As to that aspect of defendants’ motion that seeks a mistrial on the grounds of plaintiff counsel’s summation, the motion is denied. To the extent the defense’s objections were overruled on the ground that plaintiff counsel’s statements constituted fair comment on the evidence, which did not exceed the wide bounds of latitude afforded to attorneys during summation, the Court stands by those rulings.Granted, however, are those aspects of defendants’ motions that seek: (1) a hearing, pursuant to CPLR 4545, 4546 and Article 50-A, for the purpose of identifying collateral sources and structuring a judgment; (2) an order declaring that any judgment entered reflect that portion of the award that provides for future medical expenses shall be paid in accordance with Public Health Law §§2999-g through 2999-j.Accordingly, it isORDERED that defendants’ motions are granted to the extent that:(1) unless plaintiff files a written stipulation consenting to a specific reduction of the amount of damages for past and future pain and suffering to $2 million and $7 million respectively, within 30 days of entry of this decision and order, the verdict is set aside to the extent that a new trial shall be held on the question of damages;(2) a hearing shall be conducted for the purpose of identifying collateral sources and structuring a judgment; and(3) with respect to any judgment entered in this action, the portion of the award that provides for future medical expenses must be paid in accordance with Public Health Law §§2999-g through 2999-j, and the motions are otherwise denied; and it is furtherORDERED that the parties are directed to appear in the Settlement Conference Part on Tuesday, June 4, 2019 at 9:15 a.m., to schedule a date for a new trial on damages and a date for a collateral source hearing.This constitutes the decision and order of the Court.Dated: April 12, 2019White Plains, New York
