This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 119
Janice Mazella, &c.,
            Respondent,
        v.
William Beals, M.D.,
            Appellant,
et al.,
            Defendant.




          Kevin T. Hunt, for appellant.
          Alessandra DeBlasio, for respondent.




RIVERA, J.:

          In this medical malpractice and wrongful death action,
we conclude that the trial court erroneously admitted evidence
concerning defendant's negligent treatment of twelve other
patients, and that this evidence tainted the jury's deliberative

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process.   On the facts of this case, the trial court abused its
discretion by admitting evidence that was irrelevant to
defendant's liability and that unduly prejudiced the jury.
Therefore, the Appellate Division should be reversed and a new
trial ordered.
                                I.
           Plaintiff Janice Mazella commenced the instant action
against defendant William Beals, M.D. and codefendant Elizabeth
Mashinic, M.D., claiming that their substandard medical treatment
of her husband, Joseph Mazella, proximately caused his suicide.
At trial, defendant Beals admitted he deviated from accepted
medical practice by prescribing decedent the antidepressant drug
Paxil for over a decade while failing to adequately monitor his
condition.   However, defendant Beals maintained that he was not
liable for malpractice because superceding acts severed the
causal connection between his conduct and the suicide, including
medical care provided by Dr. Mashinic.   For her part, plaintiff
argued that defendant Beals' treatment and conduct towards
decedent was a contributing factor leading to decedent's death.
A jury found defendant Beals solely liable and he now appeals.
           Defendant began treating decedent in October 1993, when
he diagnosed him with major depression, obsessive-compulsive
disorder and generalized anxiety disorder.   Defendant prescribed
20 mg. of Paxil and eventually discontinued decedent's anti-
anxiety Klonopin medication, previously prescribed to decedent by


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his family physician.    In April 1994, defendant tapered off
decedent's Paxil dosage and instructed decedent to discontinue it
the following month, and to call him if there were any problems.
            Decedent next contacted defendant on April 7, 1998,
following an episode of depression.      Defendant concurred with the
recommendation of decedent's family physician that decedent
should be placed on the anti-anxiety drug Ativan and 40 mg. of
Paxil.   Within a few weeks decedent showed improvement and
defendant reduced the Ativan dosage, eventually discontinuing it
within the month.    Defendant also reduced decedent's Paxil dosage
to 20 mg.
            For more than ten years, defendant refilled the
prescriptions for Paxil by telephone or fascimile, without seeing
or examining decedent.    Then on August 9, 2009, decedent called
defendant complaining about anxiety, an increase in obsessive
thoughts, and difficulty sleeping.      Defendant, who was away on
vacation at the time, was unable to see decedent but instructed
him to double the Paxil dosage to 40 mg.      He also prescribed the
anti-psychotic medication Zyprexa, for decedent's anxiety and
sleep problems.    The following day, on August 10th, decedent and
plaintiff called defendant.    They told defendant that decedent
was pale, nauseous, lightheaded, and did not feel well.
Defendant instructed decedent to double the Zyprexa and that he
would call him the next day in the late afternoon.
            On August 11th, plaintiff observed decedent's condition


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worsen and she took him to the emergency room.    After decedent
was cleared medically he was transferred to the hospital's
Community Psychiatric Emergency Program (CPEP) for overnight
observation.    According to the hospital records admitted into
evidence, decedent complained of suicidal ideations, difficulty
sleeping and controlling his thoughts, and feeling as if his body
was on fire inside.    That night he was taken off Zyprexa and
given Ativan.    Upon his discharge the following day, decedent was
told to discontinue Zyprexa, take Klonopin, and reduce his Paxil
dosage to 30 mg.
          For the next five days decedent appeared stable.     On
August 17th, plaintiff and decedent visited defendant, now
returned from vacation.    This would be the last time defendant
had contact with decedent before the suicide.
          Both parties presented differing accounts of decedent's
August 17th visit to defendant's office.    According to plaintiff,
defendant's conduct had a devastating adverse impact on
decedent's condition.    Plaintiff testified that defendant yelled
at them, and that he appeared angry that she had taken her
husband to CPEP because defendant viewed this as decedent trying
to get help from someone else.    She also claimed that defendant
degraded decedent, accusing him of not taking more Paxil in the
past "because [decedent] couldn't get an erection."    In response
to defendant's comments, decedent pulled his shirt over his head,
even while plaintiff tried to comfort him.    According to


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plaintiff, defendant abruptly ended the session by standing up,
waving them off and telling decedent "Just go to CPEP.     That's
where you belong."   Plaintiff further claimed that defendant
"threw [them] out of his office. He turned his back," and never
said goodbye.   When decedent left he was a "crumbling mess," and
went to CPEP because he believed defendant was refusing to take
care of him.
          In contrast, defendant testified that during the August
17th visit, decedent was unresponsive and cried, and that when
decedent spoke he was very upset because he felt that his wife
thought he was acting like a baby.     It was also the first time
decedent could not assure defendant that he would not act upon
his suicidal thoughts.   Defendant advised decedent that the only
option left was inpatient treatment at CPEP.     Decedent rejected
this advice because he did not want to be seen in a local
psychiatric facility, and because decedent felt he could not go a
period of time without working.   Despite the differences in their
respective accounts of the August 17th visit, defendant
corroborated plaintiff's testimony that decedent pulled his shirt
over his head, adding that decedent had been sobbing, and that he
had never seen decedent act this way.     He also admitted that he
raised his voice, but claimed that he did so to emphasize that he
could not be sure outpatient treatment would be adequate to
address decedent's suicidal thoughts.     Defendant testified that
decedent eventually agreed to go to CPEP, and, as far as


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defendant knew, decedent remained his patient.
           There is no dispute as to what happened after decedent
last saw defendant.   Decedent went to CPEP later that day and,
while he initially declined inpatient care, after he complained
of being suicidal he was placed on 15-minute safety checks for
the next 27 hours and his access to "lethal means of suicide" was
restricted.   The following day, August 18th, he complained of
feeling hopeless and worthless, and repeated that he would kill
himself.   His medications were adjusted and he was discharged.
           After a difficult and restless night, decedent returned
to CPEP on August 19th.   He was administered Ativan, and placed
on 15-minute safety checks for about 12 hours.   That evening he
was involuntarily transferred to the psychiatric unit at Auburn
Memorial Hospital (Auburn).
           On August 20th, decedent met with Dr. Mashinic.    She
adjusted his medication and placed him on a multi-drug regimen of
increased Paxil, Klonopin, Zyprexa, Ativan, and another anti-
psychotic drug.    That night, after Dr. Mashinic discontinued the
one-on-one suicide watch, decedent attempted suicide by tying the
belt of his hospital gown around his neck.   Dr. Mashinic
re-instated the suicide watch, and again changed decedent's
medications, replacing Paxil with another anti-depressant, and
added Risperdal.   Over the course of a week, doctors at Auburn
adjusted decedent's medications as he continued to complain about
anxiety and depression, and increased repulsive thoughts of a


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sexual nature.    At times he reported a decrease in depression,
but still complained of difficulty sleeping and relaxing.
            Decedent was discharged on August 27th, and referred to
the Brownell Center for out-patient psychiatric care.    Brownell
had a three-part screening and intake process, which decedent
commenced on September 3, 2009, when he met with a social worker.
At this time he complained of suicidal and obsessive sexual
thoughts.    During his second intake visit, on September 9th, he
met with a psychotherapist and told her that everything was
overwhelming, that he felt "as if someone had taken his brain
out," and that he had "suicidal thoughts come and go."    The
Brownell psychotherapist scheduled an accelerated third intake
appointment for September 11th.    However, Brownell was unable to
obtain decedent's previous medical records in time for this
appointment.    As a consequence, on September 11th decedent met
instead with an independent licensed social worker and
psychotherapist recommended by a family member.    Decedent told
the psychotherapist that he had suicidal thoughts, but could not
act on them because of his daughters.    The psychotherapist
concluded decedent was not at risk of committing suicide and made
plans to check up on him the next day.
            As it turned out, decedent did not have any further
contact with any medical professionals.    Early on September 12,
2009, decedent went to his garage and committed suicide by
stabbing himself with a knife.    Shortly after, plaintiff found


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                               - 8 -                         No. 119
him there, face down in a pool of blood.


                                II.
           In June 2010, plaintiff, as administrator of decedent's
estate, commenced this medical malpractice and wrongful death
action against defendant and Dr. Mashinic.   She alleged that
defendant's treatment of decedent was negligent, as demonstrated,
in part, by his failure to properly prescribe and monitor
decedent's medication, and adequately diagnose decedent's
worsening condition during the August 17, 2009 office visit.       She
further claimed defendant's negligence was a direct and proximate
cause of his suicide.   With respect to Dr. Mashinic, plaintiff
alleged that her treatment at Auburn was negligent, and that her
conduct was also a direct and proximate cause of decedent's
suicide.
           Prior to trial, defendant filed a motion in limine to
preclude, among other things, the admittance of a consent
agreement between defendant and the Office of Professional
Medical Conduct (OPMC).1   The OPMC is part of the New York State
Board for Professional Medical Conduct and is responsible for
investigating complaints against physicians, coordinating
disciplinary hearings and enacting sanctions as required.     In


     1
       Defendant signed two consent agreements. Only the one
dated February 14, 2012, by which defendant agreed not to contest
certain negligence charges, was admitted at trial and, therefore,
relevant to this appeal.

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January 2012, OPMC brought misconduct charges against defendant,
alleging that he "deviated from accepted standards of medical
care" by prescribing medications to 13 patients over several
years without adequately monitoring and evaluating them, and
often without any face-to-face visits. Decedent was one of the
listed patients.    By Consent Agreement and Order dated and
finalized in February 2012 (Consent Order), defendant agreed not
to contest charges of negligence based on allegations involving
his treatment for 12 of the 13 patients, specifically excluding
decedent.2
             Defendant argued, in part, that the Consent Order was
not probative evidence of his negligence with respect to
decedent, and was unduly prejudicial because none of the
uncontested charges involved decedent or addressed the proper
treatment for a patient with a long history of depression,
anxiety and OCD.    Defendant contended that introduction of the
Consent Order would serve only to unfavorably "sway" the jury.
The court denied the motion and determined that the Consent Order
"would be admissible in full with regard to the issues
surrounding not only the [decedent's] case, but also [the other
patients], based on testimony of habit and credibility."    Prior
to trial, defendant conceded that prescribing Paxil to decedent


     2
       In accordance with the Consent Order, defendant agreed to
a term of probation, which included review by OPMC of defendant's
performance and a requirement that he only practice medicine when
monitored by another physician.

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over the course of more than ten years without any face-to-face
contact was a deviation from acceptable medical practice.          On the
day trial was scheduled to begin, defendant renewed his motion to
preclude the Consent Order, arguing that, in light of his
concession, it was no longer probative of any disputed issue.
The court again denied the motion.
          The Consent Order was later admitted into evidence
during defendant's testimony.    When plaintiff called defendant as
a witness, he testified that he failed to appropriately monitor
decedent from 2000-2009 while decedent was on Paxil, but denied
that this constituted malpractice.       Over defense counsel's
objection, the court admitted the Consent Order and allowed
plaintiff to question defendant about its contents.       During that
questioning defendant was repeatedly confronted with the fact
that OPMC had charged him with "gross negligence" with regard to
13 patients, including decedent, and that defendant signed the
Consent Order in satisfaction of the charges, receiving a
reprimand and censure as punishment for his misconduct.
          Defendant also sought to preclude admission of a
photograph of decedent taken after his suicide, arguing that it
lacked probative value because there was no dispute as to the
manner of decedent's death.   The court allowed the photograph
into evidence "not only on the issue of how [decedent] went about
what he did, but also the pain and suffering issues and the other
related issues."


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          At trial, each party submitted expert testimony to
persuade the jury of their own respective theory of negligence
and causation.    Plaintiff relied on Dr. Peter Breggin, a licensed
physician in New York with a specialty in psychiatry.   Dr.
Breggin concluded that defendant deviated from accepted medical
standards by failing to monitor decedent for years while
prescribing Paxil, and by later abandoning him as a patient, and
that defendant's conduct was a significant contributing factor to
decedent's suicide.   He explained that following more than 10
years of unmonitored Paxil dosing, defendant worsened decedent's
condition by doubling his Paxil prescription and adding Zyprexa
after decedent telephoned him on August 9th.   He described this
as "a turning point" with catastrophic results for decedent.
According to Dr. Breggin, doubling decedent's Paxil was hazardous
because it greatly increased the impact of a very potent drug,
and notably is not recommended by the Federal Food and Drug
Administration.
          Dr. Breggin also testified to the impact on decedent's
already vulnerable condition when he finally had a face-to-face
visit with defendant on August 17, 2009.   He explained that when
a patient visits a psychiatrist they are feeling hurt and
self-conscious.   According to Dr. Breggin a person who is very
distressed, having a great deal of emotional difficulty, is
particularly sensitive to humiliation -- to being rejected,
abandoned and invalidated.   A doctor cannot turn a patient away,


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but instead has to ensure there is adequate followup.    Dr.
Breggin concluded that after August 17th, decedent never again
established a secure relationship with a physician and had
"really been cast at sea by" defendant.    He also testified, as
established by the photograph and the autopsy report, that
decedent's suicide was "very violent and bloody," and that such
suicides are often associated with the use of antidepressants.3
Therefore, in Dr. Breggin's opinion, defendant's actions on
August 17th, after years of failing to monitor decedent's
prescription medication and doubling the Paxil dosage over the
telephone without an in-person assessment of decedent, were a
significant contributing factor to decedent's suicide.
          For his part, defendant presented testimony from Dr.
Benson Zoghlin, a family physician, who explained that
defendant's 10 years of prescribing Paxil without seeing decedent
did not contribute to the suicide because decedent was doing well
during that period.   According to Dr. Zoghlin, decedent only
appeared to decompensate when he was hospitalized and his
medication was substantially readjusted.    In his opinion,
decedent's major depressive disorder caused his death, rather
then any action taken by defendant.
          Dr. Thomas Schwartz, a licensed doctor board certified


     3
       In addition, Dr. Breggin testified that it was Dr.
Mashinic's responsibility to ensure that decedent had a
psychiatrist when he was discharged from Auburn, and that her
conduct also served as a contributing factor to the suicide.

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in psychiatry, also testified on behalf of defendant.    He
explained that individuals, like decedent, who are suffering from
a major depressive disorder and obsessive-compulsive disorder at
the same time pose a high risk of suicide.    He also opined that
the benefits of the different medications that defendant
prescribed to decedent outweighed any risks.
          The jury returned a verdict for plaintiff, finding both
defendant and Dr. Mashinic negligent, but that only defendant's
negligence proximately caused decedent's suicide.   The jury
awarded $1,200,000 in damages and apportioned $800,000 to
plaintiff and $400,000 to be divided among decedent's three
surviving daughters.   The court denied defendant's motion to set
aside the verdict, and entered an amended judgment for plaintiff
in accordance with the money damages awarded by the jury.4
          The Appellate Division affirmed, with one justice
dissenting (122 AD3d 1358 [4th Dept 2014]).    We granted defendant
leave to appeal (25 NY3d 901 [2015]), and now reverse.


                               III.
          Defendant asserts several grounds for reversal.5


     4
       Supreme Court entered an amended judgment to correct a
typographical error in the original judgment.
     5
       The Appellate Division rejected defendant's claim that the
verdict was against the weight of the evidence and we are without
authority to consider this additional ground on appeal (see Heary
Bros. Lightning Protection Co., Inc. v Intertek Testing, 4 NY3d
615, 618 [2005]; Karger, Powers of the New York Court of Appeals

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                                - 14 -                       No. 119
First, he claims the verdict is legally insufficient because
plaintiff failed to establish defendant was the proximate cause
of the suicide.     Second, defendant argues that he was denied a
fair trial by the trial court's admission into evidence of the
Consent Order and the photograph of decedent's body.     Third,
defendant argues that the trial court abused its discretion when
it denied his request for a special verdict sheet on liability
and damages.   We conclude that although the evidence was
sufficient to support the verdict, the trial court committed
reversible error when it admitted the Consent Order and permitted
defendant to be questioned regarding its contents.


               A.   Legal Sufficiency of the Evidence
          To succeed on his legal insufficiency claim, defendant
must establish "there is no valid line of reasoning or
permissible inferences which could possibly lead rational
[persons] to the conclusion reached by the jury on the basis of
the evidence presented at trial" (Cohen v Hallmark Cards, Inc.,
45 NY2d 493, 499 [1978]).     This is a "basic assessment of the
jury verdict" and prohibits a holding of insufficiency "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" (id.).
          In a medical malpractice action, the plaintiff must


§ 13:2, at 454).

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show that the defendant "deviated from accepted medical practice,
and that such deviation was a proximate cause of the plaintiff's
injury" (James v Wormuth, 21 NY3d 540, 545 [2013]). Defendant
conceded that he deviated from accepted medical standards by
failing to properly monitor decedent, and on appeal he argues
only that the evidence does not support a jury determination that
his negligence was a proximate cause of the suicide.6
           A defendant's negligence qualifies as a proximate cause
where it is "a substantial cause of the events which produced the
injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315
[1980]).   However, "[w]here the acts of a third person intervene
between the defendant's conduct and the plaintiff's injury, the
causal connection is not automatically severed" (id.).    As this
Court has explained, "liability turns upon whether the
intervening act is a normal or foreseeable consequence of the
situation created by the defendant's negligence" (id., citing
Parvi v City of Kingston, 41 NY2d 553, 560 [1977]).     Only where
"the intervening act is extraordinary under the circumstances,
not foreseeable in the normal course of events, or independent of
or far removed from the defendant's conduct," may it possibly


     6
       Even without defendant's concession of negligence on
appeal, plaintiff presented ample evidence of such negligence at
trial. Namely, plaintiff's expert testified that defendant
deviated from accepted medical standards by prescribing Paxil for
10 years and adding Zyprexa without properly monitoring or seeing
decedent, and by providing ineffective care during the August
17th meeting, leaving decedent feeling humiliated and abandoned.


                              - 15 -
                             - 16 -                         No. 119
"break[] the causal nexus" (id.).   The mere fact that other
persons share some responsibility for plaintiff's harm, does not
absolve defendant from liability because "there may be more than
one proximate cause of an injury" (Argentina v Emery World Wide
Delivery Corp., 93 NY2d 554, 560 n2 [1999]; see also NY Pattern
Jury Instr.--Civil 2:71).
          Defendant contends that decedent's hospitalization at
Auburn and treatment by other medical professionals after
defendant last saw him on August 17, 2009, were intervening and
superseding events that broke any casual connection between
defendant's conduct and decedent's suicide.   He further argues
that the suicide is too far removed from defendant's treatment of
decedent to be considered proximate.   We hold his claims to be
without merit.
          Although several events transpired after his last
meeting with decedent on August 17th, there was sufficient trial
evidence for the jury to conclude that, regardless of these
events, defendant proximately caused decedent's suicide.
Defendant admitted to negligently treating decedent for over a
decade, which was further corroborated by evidence of the
specific manner in which he prescribed Paxil for over 10 years
without properly monitoring or meeting with decedent.   There was
also trial evidence supporting plaintiff's argument that the
violent nature of the suicide indicated it was connected to
decedent's prescription drug use.   Furthermore, the jury could


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                              - 17 -                         No. 119
have credited plaintiff's version of the August 17th office visit
and concluded that defendant's conduct worsened decedent's
condition, leading to his suicide.
           Significantly, plaintiff's expert provided testimony to
assist the jury in connecting defendant's negligence with
decedent's suicide, lending further record support for the
verdict.   Dr. Breggin testified that, in his considered expert
opinion, what led to decedent's suicide was a multistage process.

           "I think it begins with ten years unmonitored
           on Paxil, so that he's inevitably going to
           have a horrific withdrawal reaction when he's
           abruptly stopped. In other words, even
           though it's covered over with other drugs,
           the brain just can't bounce back after ten
           years . . . . The lack of monitoring, very
           likely, contributed. By his not having
           anyone that he had a relationship with to go
           to, by his not having someone to observe
           whether he was in some way, getting worse on
           the drug because the family isn't going to
           necessarily notice, and it happens over time
           . . . . Then the August 9th, 2009
           prescription of Zyprexa and the doubling of
           the dose of the Paxil on the phone, sight
           unseen, with no records, was the real
           beginning of the catastrophe, because at that
           moment, he seemed as though he was having a
           problem like he had had twice before . . . .
           But now we have this new complication that
           he's doubling the dose, which is, the FDA
           recommends, no more than 10 milligrams at a
           time. He's given 20 additional milligrams.
           And adding Zyprexa, I think that's a real
           turning point for him, even though he's only
           on the Zyprexa for a few days."

He described how defendant's actions on August 17th tragically
impacted decedent at a moment when he was most vulnerable.


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                              - 18 -                        No. 119
          "It's the start of the big decline and I
          think that's very important. I think his
          visit later in August with the patient . . .
          where the patient feels humiliated,
          invalidated, rejected, abandoned, remarkable
          words to find in a medical record, rejection,
          abandonment and invalidated, marked and
          unseen in a medical record and by a doctor.
          That was a very, very big impact, and it left
          him with no relationship. The main
          preventative of suicide that we know of is a
          good relationship with a
          therapeutically-oriented professional. He
          was bereft of that. He has nobody he's going
          to trust and it's going to make it hard to
          trust after that."
It was then for the jury to decide the persuasiveness of this
testimony, and to consider it along with the opinions of
defendant's opposing experts (see People v Drake, 7 NY3d 28, 33
[2006] ["jurors remain always free to accept or reject expert
evidence"]; People v Negron, 91 NY2d 788, 792 [1998] ["a jury is
entitled to assess the credibility of witnesses and determine,
for itself, what portion of their testimony to accept and the
weight such testimony should be given").
          To the extent defendant claims there is legally
insufficient evidence of a causal nexus because the third party
acts were unforeseeable, we disagree.   There is no superceding
event if "the intervening act is a normal or foreseeable
consequence of the situation created by the defendant's
negligence" (Derdiarian, 51 NY2d at 315).   Defendant concedes
that when he last saw decedent alive on August 17th, decedent's
conduct was unusual.   Decedent was anxious and very upset and,
for the first time, he was unable to assure defendant that he

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could control his suicidal thoughts.    According to plaintiff,
defendant threw decedent out of his office when he was
desperately in need of help, leaving decedent a "crumbling mess."
The jury could have fully credited plaintiff's version of these
events and Dr. Breggin's opinion about decedent's condition when
he left defendant's office.   Thus, the jury could have concluded
that it was foreseeable that decedent would seek treatment by
others and that the treatment could potentially be lacking.
Under these circumstances, we cannot say that the intervening
acts are "of such an extraordinary nature or so attenuate[]
defendant's negligence from the ultimate injury that
responsibility for the injury may not be reasonably attributed to
the defendant" (Kush by Marszalek v City of Buffalo, 59 NY2d 26,
33 [1983]).
          This case required the jury to consider decedent's
mental health treatment and the delicate and complex functioning
of the brain and human emotion under prescription drug use. The
jury was presented with evidence of the long-term impact of
defendant's negligence on decedent's condition, as well as
evidence that subsequent medical treatment could be a foreseeable
consequence of defendant's actions.    Since a valid line of
reasoning and permissible inferences could lead rational persons
to find defendant liable for medical malpractice based on this
evidence, we conclude defendant's legal insufficiency claim is
without merit (see Cohen, 45 NY2d at 499).


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                     B.   Evidentiary rulings
          Defendant also claims that, even if there was evidence
sufficient to support the verdict, certain evidentiary rulings by
the trial court denied him a fair trial.     He argues that the
court erroneously admitted evidence of the photograph of
decedent's body and the Consent Order.     Although the court did
not abuse its discretion in admitting the photograph, we agree
with defendant that admission of the Consent Order was an abuse
of discretion warranting reversal and a new trial.
          Since "[t]rial courts are accorded wide discretion in
making evidentiary rulings . . . absent an abuse of discretion,
those rulings should not be disturbed on appeal" (People v
Carroll, 95 NY2d 375, 385 [2000]).     To be admissible, evidence
must be relevant and its probative value outweigh the risk of any
undue prejudice (People v Morris, 21 NY3d 588, 595 [2013]).
          Defendant's claim that the photograph should have been
precluded because it lacked probative value and served only to
arouse the jury's emotions is without merit.     The photograph
depicted the manner in which decedent committed suicide and was
relevant to plaintiff's theory that the violent nature of the
suicide -- death by self-inflicted knife wounds -- was a result
of decedent's extreme mental and emotional condition, induced by
the long-term use of prescription drugs.     Nor was its admission
unduly prejudicial since there was already testimony from a
paramedic describing the condition in which he found the body,


                              - 20 -
                              - 21 -                          No. 119
and the official autopsy report from the Medical Examiner's
Office was admitted into evidence without objection.    Therefore,
the court did not abuse its discretion in admitting the
photograph.
          The trial court's admission of the Consent Order into
evidence is a wholly different matter.    Generally, "it is
improper to prove that a person did an act on a particular
occasion by showing that he did a similar act on a different,
unrelated occasion" (Matter of Brandon's Estate, 55 NY2d 206,
210-211 [1982], citing Richardson, Evidence [10th ed], §§ 170,
184; see also Coopersmith v Gold, 89 NY2d 957, 959 [1997]).
Contrary to plaintiff's argument, none of the exceptions to this
rule -- motive, intent, the absence of mistake or accident, a
common scheme or plan, or identity -- apply in this case (see
Matter of Brandon, 55 NY2d at 211).    Moreover, even though the
Consent Order was a public document, and under Public Health Law
§ 10 (2) possibly admissible as "presumptive evidence of the
facts stated therein if otherwise properly rendered admissible
evidence," under these facts it should not have been admitted.
          The record establishes that the Consent Order was
neither probative of defendant's negligence or the question of
proximate cause.   As part of the Consent Order defendant agreed
not to contest negligent treatment of certain anonymous patients,
none of whom was the decedent.   As such, defendant preserved his
objections to factual allegations related to decedent and any


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                              - 22 -                        No. 119
charges of misconduct based on those allegations.   Since the
Consent Order did not establish facts concerning defendant's
treatment of decedent, it was not probative as to that issue.    In
any event, given defendant's pre-trial concession that he
deviated from accepted medical practice, the issue of negligent
treatment did not require resolution by the jury.
           Further, any possible relevance of the Consent Order's
contents was outweighed by the obvious undue prejudice of his
repeated violations of accepted medical standards (see Maraziti v
Weber, 185 Misc 2d 624, 626 [Sup Ct Dutchess County 2000] [court
denied admittance of an OPMC report detailing previous instances
of defendant's negligence since such evidence was "of marginal
relevance at best, but would be likely to unduly prejudice the
jury"]).   The Consent Order was nothing more than evidence of
unrelated bad acts, the type of propensity evidence that lacks
probative value concerning any material factual issue, and has
the potential to induce the jury to decide the case based on
evidence of defendant's character (see People v Arafet, 13 NY3d
460, 464-465 [2009] ["Evidence of uncharged crimes is
inadmissible where its only purpose is to show bad character or
propensity towards crime"]; Hosmer v Distler, 150 AD2d 974, 975
[3d Dept 1989] [trial court properly excluded defendant's prior
convictions for driving while intoxicated and that he had a habit
of excessive drinking as unfairly prejudicial propensity
evidence]).


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                               - 23 -                        No. 119
            Plaintiff's additional argument that the Consent Order
was admissible to impeach defendant as an admission and as a
prior inconsistent statement is also without merit.   Plaintiff
claims she was entitled to present this evidence to the jury once
defendant testified that although he was negligent in prescribing
Paxil for 10 years without monitoring decedent, his conduct was
not malpractice.   As a preliminary matter, defendant's testimony
was not inconsistent because the Consent Order did not include
any assertions or concessions regarding defendant's treatment of
decedent.   In addition, since medical malpractice requires a
finding of causation (James, 21 NY3d at 545), defendant could
concede negligent treatment and still maintain his conduct did
not constitute malpractice as a legal matter.
            We are also unpersuaded by plaintiff's claim that the
evidence was admissible to impeach defendant's credibility.
Collateral matters relevant only to credibility are properly
excluded because they distract the jury from the central issues
in the case, and bear the risk of prejudicing the jury based on
character and reputation (see Badr v Hogan, 75 NY2d 629, 635
[1990]; People v Schwartzman, 24 NY2d 241, 245 [1969]; see also
Richardson, Evidence [11th ed], § 4-410).   It is an abuse of a
trial court's discretion to admit evidence of bad acts when such
evidence lacks any probative value, or bears only marginal
relevance, outweighed by its prejudicial effect (see Badr, 75
NY2d at 635; Richardson, Evidence [11th ed], §§ 4-410, 4-501).


                               - 23 -
                             - 24 -                          No. 119
Here, given defendant's concession at trial that he deviated from
accepted medical practices, the Consent Order was unquestionably
collateral, without probative value, and, regardless, improperly
prejudicial.
          On the facts of this case, there were no permissible
grounds to allow the Consent Order into evidence.   Morever,
notwithstanding that under CPLR 2002 "[a]n error in a ruling of
the court shall be disregarded if a substantial right of a party
is not prejudiced," here, admission of the Consent Order tainted
the deliberative process, and sufficiently prejudiced defendant,
such that we cannot disregard this error.   Given the multiple
allegations of defendant's negligent monitoring of prescription
drug treatment, and the numerous patients referenced in the
Consent Order, we cannot say that the verdict was not influenced
by this powerful evidence of defendant's professional misconduct.
Indeed, it is difficult to imagine how a jury could simply ignore
that defendant negligently treated 12 other patients for years in
a similar manner as decedent, namely failing to monitor them, and
that this conduct resulted in OPMC charges leading to its
oversight of his medical practice.
          This point was not lost on plaintiff, who repeatedly
referred to defendant's acts of negligence and, during summation,
explicitly relied on the Consent Order to link prior allegations
of defendant's negligence with plaintiff's current claims.     In
light of the prejudicial nature of the Consent Order and its


                             - 24 -
                              - 25 -                         No. 119
repeated use at trial we cannot say that its admission did not
have a substantial impact on the verdict.
          Here the evidence portrayed defendant as a serial pill
pusher, oblivious to the health and safety of those in his care,
and a danger to patients.   Since the evidence could have induced
the jury to punish him for his unrelated misdeeds, admission into
evidence of the Consent Order was sufficiently prejudicial to
defendant so as to require a new trial (see Badr, 75 NY2d at 637
[cross-examination of a witness with prior bad acts was
"sufficiently prejudicial" to require a new trial]; compare with
Geary v Church of St. Thomas Acquinas, 98 AD3d 646, 647 [2d Dept
2012], lv denied 20 NY3d 860 [2013] [no new trial required when
the court improperly precluded evidence since "there is no
indication that the evidence would have had a substantial
influence on the result of the trial"]).


                  C.   The General Verdict Sheet
          Given our determination that defendant is entitled to a
new trial, we briefly address his claims that use of a general
verdict sheet was improper.   Defendant argued that the court
should have provided the jury with a special verdict sheet with
individual interrogatories because plaintiff relied on three
different theories of liability.   However, there was a single
theory of liability presented to the jury based on the
defendant's continuum of negligent treatment.


                              - 25 -
                                 - 26 -                           No. 119
            Although defendant did not propose to the trial court
the specific type of special verdict he now advocates, such a
special verdict sheet itemizing the subcategories of damages may
assist a court's review of the jury's monitory award (CPLR 4111
[d]; see Killon v Parrotta, 125 AD3d 1220, 1223 [3d Dept 2015]).
On retrial, defendant should be afforded the opportunity to argue
in support of a special verdict sheet on damages.
            Accordingly, the order should be reversed, with costs,
and a new trial ordered.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order reversed, with costs, and a new trial ordered. Opinion by
Judge Rivera. Chief Judge DiFiore and Judges Pigott,
Abdus-Salaam, Stein and Garcia concur. Judge Fahey took no part.

Decided June 30, 2016




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