        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

975
CA 13-01421
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND VALENTINO, JJ.


JANICE MAZELLA, AS ADMINISTRATRIX OF THE ESTATE
OF JOSEPH MAZELLA, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM BEALS, M.D., DEFENDANT-APPELLANT,
ET AL., DEFENDANT.
(APPEAL NO. 3.)


GALE GALE & HUNT, LLC, SYRACUSE, MEISELMAN, PACKMAN, NEALON, SCIALABBA
& BAKER P.C., WHITE PLAINS (MYRA I. PACKMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DEL DUCHETTO & POTTER, SYRACUSE (ERNEST A. DEL DUCHETTO OF COUNSEL),
AND ALESSANDRA DEBLASIO, NEW YORK CITY, FOR PLAINTIFF-RESPONDENT.


     Appeal from an amended judgment of the Supreme Court, Onondaga
County (John C. Cherundolo, A.J.), entered May 21, 2013. The amended
judgment, insofar as appealed from, awarded plaintiff money damages
upon a jury verdict.

     It is hereby ORDERED that the amended judgment so appealed from
is affirmed without costs.

     Memorandum: In this medical malpractice and wrongful death
action, William Beals, M.D. (defendant) appeals from an amended
judgment awarding money damages to plaintiff. We reject defendant’s
contention that Supreme Court erred in denying his posttrial motion
seeking to set aside the verdict on the ground that plaintiff had
failed to establish a prima facie case of medical malpractice. To
establish his entitlement to that relief, defendant was required to
establish that the evidence was legally insufficient to support the
verdict, i.e., “that there [was] simply no valid line of reasoning and
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, 45 NY2d 493, 499). On
this record, we conclude that “there is a valid line of reasoning
supporting the jury’s verdict that defendant deviated from the
applicable standard of care in [his treatment] of plaintiff’s
[decedent] . . . , and that such deviation was a proximate cause of
[the] injuries” of plaintiff’s decedent (Winiarski v Harris [appeal
No. 2], 78 AD3d 1556, 1557; see generally Sacchetti v Giordano, 101
AD3d 1619, 1619-1620). We also reject defendant’s alternative
                                 -2-                           975
                                                         CA 13-01421

contention in support of his posttrial motion that the verdict is
against the weight of the evidence, i.e., that the evidence so
preponderated in defendant’s favor that the verdict in favor of
plaintiff could not have been reached on any fair interpretation of
the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744,
746). Here, we conclude that “the ‘trial was a prototypical battle of
the experts, and the jury’s acceptance of [plaintiff’s] case was a
rational and fair interpretation of the evidence’ ” (Holstein v
Community Gen. Hosp. of Greater Syracuse, 86 AD3d 911, 912, affd 20
NY3d 892). With respect to our dissenting colleague’s summary of the
testimony of plaintiff’s expert, we respectfully note that there may
have been more than one proximate cause of decedent’s injuries (see
generally Argentina v Emery World Wide Delivery Corp., 93 NY2d 554,
560 n 2), and that the jury was entitled to credit plaintiff’s theory
that defendant’s actions constituted one of those proximate causes.

     Defendant further contends that the verdict must be set aside and
a new trial granted because, inter alia, he was denied a fair trial by
the admission in evidence of certain documents of the Office of
Professional Medical Conduct. Even assuming, arguendo, that the court
erred in admitting those documents in evidence, defendant’s contention
lacks merit inasmuch as “that . . . error ‘would not have affected the
result’[,] and . . . any such error therefore is harmless” (Cook v
Oswego County, 90 AD3d 1674, 1675).

     Contrary to defendant’s further contention, the court’s failure
to submit a special verdict sheet to the jury was not prejudicial and
does not require a new trial (see Suarez v New York City Health &
Hosps. Corp., 216 AD2d 287, 287; see also Kolbert v Maplewood
Healthcare Ctr., Inc., 21 AD3d 1301, 1301-1302). We have considered
defendant’s remaining contentions and, to the extent that they are
properly before us, we conclude that they lack merit.

     All concur except SMITH, J.P., who dissents and votes to reverse
the amended judgment insofar as appealed from in accordance with the
following Memorandum: Because I disagree with the majority’s
conclusion that the negligence of defendant William Beals, M.D.
(defendant) was a proximate cause of the suicide of Joseph Mazella
(decedent), I respectfully dissent. I would reverse the amended
judgment insofar as appealed from, grant defendant’s motion to set
aside the verdict as against the weight of the evidence (see generally
Dentes v Mauser, 91 AD3d 1143, 1145-1146, lv denied 19 NY3d 811;
Rivera v Greenstein, 79 AD3d 564, 568-569), and dismiss the complaint
with respect to defendant.

     The evidence at trial established that defendant treated decedent
for depression and other mental health conditions for many years
before 2009 by, inter alia, prescribing medications. The evidence
further established that defendant did not personally see decedent
during approximately the last 10 years of that time, and defendant
admitted that such was negligent conduct. Decedent’s condition flared
up again and, on August 9, 2009, he telephoned defendant, who was on
vacation. There is evidence in the record from which the jury could
have concluded that decedent had either reduced the dosage of the
                                 -3-                           975
                                                         CA 13-01421

medication prescribed by defendant or had stopped taking the
medication prior to telephoning defendant, although there is also
evidence in the record from which the jury could have drawn the
contrary conclusion. During that telephone call, defendant changed
the dosage of decedent’s medication and prescribed an additional
medication. During a telephone call the next day, defendant again
adjusted decedent’s medications.

     The day after that, plaintiff telephoned defendant and informed
him that she was concerned about decedent’s condition. Defendant
advised her to take decedent to a nearby hospital’s Comprehensive
Psychiatric Emergency Program (CPEP), which she did, and decedent was
hospitalized overnight. Defendant met with decedent and plaintiff at
defendant’s office several days later, on August 17, 2009. Although
the record contains varying descriptions of the interactions between
those three people during that meeting, it is clear that defendant’s
last contact with decedent occurred at that time, and defendant
referred decedent to CPEP for further treatment.

     Even assuming, arguendo, that the above evidence and the other
evidence introduced by plaintiff at trial was sufficient to establish
that defendant was negligent in his treatment of decedent up until
that time, it is undisputed that decedent received significant medical
treatment after his last contact with defendant. The evidence at
trial established that, after his last meeting with defendant,
decedent went to CPEP, where the physicians recommended that decedent
enter an inpatient psychiatric facility, but decedent declined to
follow that advice. Decedent was treated overnight at CPEP and then
released, and the treating physician who released decedent prescribed
different medications than those that had been prescribed by
defendant. The physician at CPEP thought that decedent should not be
released, but decedent and plaintiff convinced the physician that
plaintiff and decedent’s other family members could care for him at
home. Decedent returned to CPEP the next day and was admitted, and he
was later transferred to the inpatient psychiatric unit of another
hospital. Decedent remained there for about a week, during which time
another psychiatrist changed his medications again and prescribed
other treatment for his condition. Decedent was released from that
facility because the physicians there concluded that he was not
suicidal, and that his condition had improved sufficiently to allow
him to continue treatment on an outpatient basis. None of the medical
professionals who saw decedent during the week after his discharge
from the inpatient psychiatric unit thought he was suicidal, and
plaintiff wrote a note during that time frame indicating that she
thought decedent was “80-90% better.”

     Decedent was released from inpatient psychiatric treatment under
a regimen of medications that was different from the medications
prescribed by defendant, and some of those medications carried
warnings that they were not to be prescribed to those at risk of
suicide. Rather than referring decedent to a psychiatrist upon
discharge, the psychiatrist at the hospital referred him to a
psychiatric clinic that had approximately a four-week intake process.
When plaintiff spoke with the hospital’s psychiatrist after decedent’s
                                 -4-                           975
                                                         CA 13-01421

discharge and expressed concern regarding the newly-prescribed
medications, the psychiatrist told her to have decedent continue
taking one of the medications, but also said that decedent could
discontinue the other. Before decedent’s application to be accepted
for treatment at the psychiatric clinic was completed, decedent
committed suicide.

     “The standard for determining whether the jury’s verdict is
against the weight of the evidence is whether the evidence so
preponderated in [the aggrieved party’s] favor that the verdict could
not have been reached on any fair interpretation of the evidence”
(Paterson v Ellis, 284 AD2d 981, 981; see Lolik v Big V Supermarkets,
86 NY2d 744, 746; Nicastro v Park, 113 AD2d 129, 134). Here, I agree
with defendant that the jury’s finding that the intervening acts of
the other medical providers involved in decedent’s care was not an
intervening, superseding cause of decedent’s injuries is not supported
by the weight of the evidence.

     “Ordinarily, a plaintiff asserting a medical malpractice claim
must demonstrate that the doctor deviated from acceptable medical
practice, and that such deviation was a proximate cause of the
plaintiff’s injury” (James v Wormuth, 21 NY3d 540, 545). “To
establish proximate cause, a ‘plaintiff must generally show that the
defendant’s negligence was a substantial cause of the events which
produced the injury’ ” (Pomeroy v Buccina, 289 AD2d 944, 945, quoting
Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52
NY2d 784; see Kush v City of Buffalo, 59 NY2d 26, 32-33). Here, I
agree with defendant that the verdict is against the weight of the
evidence under the circumstances presented because plaintiff failed to
establish that defendant’s negligence was a proximate cause of
decedent’s suicide. To the contrary, I conclude that the psychiatric
treatment provided to decedent after defendant’s involvement in the
case ended constituted an intervening act that severed any causal
connection between defendant’s negligence and decedent’s suicide.
“ ‘An intervening act will be deemed a superseding cause and will
serve to relieve defendant of liability when the act . . . so
attenuates defendant’s negligence from the ultimate injury that
responsibility for the injury may not be reasonably attributed to the
defendant’ ” (Gardner v Perrine, 101 AD3d 1587, 1587-1588, quoting
Kush, 59 NY2d at 33). Thus, “[i]f the negligent act of the third
party is extraordinary under the circumstances and unforeseeable as a
normal and probable consequence of defendant’s negligence, then the
third party’s negligence supersedes that of the defendant and relieves
defendant of liability” (DePesa v Westchester Sq. Med. Ctr., 239 AD2d
287, 288-289).

     Here, the weight of the evidence establishes that decedent’s
condition improved after defendant stopped treating him, and that the
immediate cause of his death was either the disease from which he
suffered or the medications that he took prior to his suicide. It is
undisputed that defendant did not prescribe any medications for
decedent for approximately one month prior to his death, and defendant
obviously did not cause the underlying disease that all of the
defendants were involved in treating.
                                 -5-                           975
                                                         CA 13-01421

     Plaintiff offered the testimony of a medical expert who opined
that defendant was negligent in prescribing decedent’s medication,
which caused decedent to become so overmedicated that he was in a
toxic state, and that defendant was additionally negligent by refusing
to provide care for decedent thereafter. That same expert, however,
testified that the later treatment providers were negligent and, most
notably, that the psychiatrist who released decedent from the
inpatient psychiatric unit at the hospital was “where the buck stops.
The buck stops with the psychiatrist to make sure [decedent] got help,
. . . [and] if the social worker hadn’t got the job done, to make sure
somebody else got it done.” Thus, even according to the testimony of
plaintiff’s expert, liability for decedent’s suicide lay with the
final treating psychiatrist.

     Consequently, based on the different regimen of medications that
decedent had been prescribed, which were different from the
medications that decedent had taken while under the care of defendant,
plus the extensive medical treatment provided by other medical
professionals for several weeks, and their prescription of medications
that have an increased risk of suicide, all of which took place after
defendant’s treatment of decedent ended, I conclude that any causal
connection between defendant’s prior negligent treatment of decedent
and decedent’s suicide was severed. Thus, “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” (Cohen v Hallmark Cards, Inc., 45
NY2d 493, 499).

     I further conclude that defendant was deprived of a fair trial by
an evidentiary error, i.e., the admission in evidence of a consent
agreement that defendant had signed with the Office of Professional
Medical Conduct (OPMC), and that such error undoubtedly contributed to
the legal error of the jury’s determination of defendant’s liability.
The OPMC had charged defendant with negligence regarding 13 patients,
and decedent is listed as patient A in OPMC’s charges against
defendant. Defendant thereafter signed a consent agreement with OPMC,
in which he agreed not to contest the allegations with respect to
those who were designated patients B through M in the consent
agreement.

     During cross-examination at trial, defendant admitted that he had
failed to appropriately monitor decedent while he was on medication.
Plaintiff’s attorney then asked whether that constituted medical
malpractice. After Supreme Court overruled the objection of
defendant’s attorney, defendant indicated that it was not. The court
then permitted plaintiff’s attorney to introduce the consent agreement
in evidence and to use it to impeach defendant. That was error.

     First, the question that plaintiff’s attorney asked defendant
called for defendant to admit that he had committed medical
malpractice with respect to his treatment of decedent. Defendant
admitted that he was negligent in his care of certain patients but, as
noted above, it is well settled that the elements of “a medical
malpractice [claim] are a deviation or departure from accepted
                                 -6-                           975
                                                         CA 13-01421

community standards of practice and evidence that such departure was a
proximate cause of injury or damage” (Geffner v North Shore University
Hosp. 57 AD3d 839, 842; see Foster-Sturrup v Long, 95 AD3d 726, 727).
Inasmuch as defendant did not admit to either medical malpractice or
all the elements of a claim of medical malpractice by signing the
consent agreement, the court should have sustained the objection of
defendant’s attorney to the question as asked.

     Next, even assuming, arguendo, that defendant had admitted to
medical malpractice by signing the consent agreement, and that it was
permissible for plaintiff to use an alleged prior inconsistent
statement to impeach the credibility of a witness that she herself had
called (see generally Jordan v Parrinello, 144 AD2d 540, 541), it is
clear that defendant did not admit to any negligence in the consent
agreement with respect to decedent. Moreover, because defendant
admitted in the consent agreement to negligence only with respect to
the 12 other patients, the consent agreement did not constitute a
prior inconsistent statement in the context of the issues at trial and
defendant’s testimony, both of which concerned only decedent. Given
the highly prejudicial nature of the statements in the consent
agreement, i.e., that decedent admitted that he failed to provide
proper care to 12 patients other than decedent, as well as the
complete lack of either probative value to the issues at trial or
relevance for impeachment purposes, I conclude that defendant was
deprived of a fair trial by the admission of the consent agreement in
evidence, and by permitting plaintiff’s attorney to cross-examine
defendant regarding it.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
