Medical Malpractice Appellate Decisions: Denial of a Fair Trial?
In recent months, the Appellate Division in the Second and Fourth departments has considered appeals of decisions on post-trial motions in medical malpractice cases pursuant to CPLR 4404(a) on the ground, among others, that a party was denied a fair trial. One of those appeals resulted in the ordering of a new trial. Two others resulted in affirmances of judgments for defendants.
Rule 4404, titled "Post-trial motion for judgment and new trial," includes subsection "a" regarding such motions following a trial where a jury was required; it provides:
After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
In early October, the Second Department decided Nunez v. New York City Health & Hospitals (Elmhurst Hospital Center).1 The trial court denied the defendant-hospital's Rule 4404 motion, which had asserted several grounds to set aside the jury verdict for plaintiff. The case involved allegations that the hospital failed to properly diagnose the plaintiff's mother's pre-term labor and delayed delivery despite an indication of fetal distress several days after presentation, causing the infant to suffer from lack of oxygen resulting in cerebral palsy and other related injuries. On appeal, the Second Department held that the hospital had been denied a fair trial, reversed the trial court's denial of that part of the hospital's post-trial motion, and ordered a new trial. One judge on the four-judge panel concurred in part and dissented in part.
The majority in Nunez proceeded to discuss several errors. One involved the preclusion of expert testimony. The hospital called an expert pediatric neurologist to testify based on his review of the medical records. On cross-examination, plaintiff challenged his testimony because he had not physically examined plaintiff infant and pointed out that the hospital chose not to call as a witness another pediatric neurologist expert who examined the infant. When the hospital then sought permission to call the second expert for the limited purpose of questioning him about his clinical findings from the examination, the trial court denied the request as involving testimony that would be cumulative to that of the first pediatric neurologist expert.
While acknowledging that the exclusion of evidence as cumulative rests within the sound discretion of the trial court, the Second Department majority concluded that in this instance the proposed testimony would have been limited to the doctor's findings regarding the physical examination and therefore could have been limited to non-cumulative matters. On summation, plaintiff's counsel argued that the second expert was not called to testify because his findings would not have been favorable to the defense. The preclusion of testimony from the examining doctor, the panel concluded, resulted in significant prejudice to the defendant.
On that point, the minority dissented because the record lacked any indication that the hospital was surprised at not receiving permission to call two expert witnesses with the same expertise, and that under the circumstances it could not be said that the trial court improvidently exercised discretion or that any error in that regard warranted reversal in the context of the lengthy trial below.
The majority held that the hospital was further deprived of a fair trial by the court's intrusion into the examination of the witnesses. Although the majority did not spell out the circumstances of those instances, the minority opinion characterized them as "brief instances where one could infer 'that the manner in which the trial court questioned witnesses was inappropriate.'"2 The minority view was that they were not prejudicial and in some cases the hospital, by not objecting at the time, had not preserved the issue for appeal; and further that the trial judge's conduct did not rise to the level of prejudicial intrusions that the courts have found to prevent the jury from considering the evidence. So while the minority considered the trial court to have properly exercised its broad discretion in controlling questioning, the Second Department held that:
[W]hile the trial court had the authority to elicit and clarify the defense witnesses' testimony, the record shows that on repeated occasions, including those specifically discussed by our dissenting colleague, it did not do so in an evenhanded and temperate manner. The court conveyed the impression of incredulity with respect to the defense witnesses' opinions, as reflected by the record. Moreover, the court's incredulity had an improper cumulative effect.3
Finally, another basis for the Second Department's holding that the hospital had been denied a fair trial was a supplemental jury instruction, pursuant to Noseworthy v. City of New York.4 Generally, under the Noseworthy doctrine, a plaintiff is held to a lesser degree of proof where the injured party is unable to describe the events in question due to a disability occasioned by a defendant's acts. The Second Department viewed Noseworthy as inapplicable in this case because the infant plaintiff's inability to testify about the events surrounding his birth was not the result of memory loss stemming from the defendants' alleged negligence, his mother testified extensively about her labor and delivery and the infant's injuries, and lastly the mother and hospital were on equal footing with respect to their knowledge of the events leading to the infant's injuries. Thus, the majority held, the Noseworthy instruction erroneously relaxed the plaintiff's burden of proof. The minority opinion dissented on this point, reasoning that the trial court alleviated any prejudice caused by this error because other instructions limited the effect of the erroneous one.