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

804.3
CA 10-01418
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ.


MARCIA A. WILD, THOMAS F. HORN, AS CO-EXECUTORS
OF THE ESTATE OF MARGUERITE HORN, DECEASED, AND
JOSEPH HORN, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CATHOLIC HEALTH SYSTEM, DOING BUSINESS AS
MERCY HOSPITAL OF BUFFALO, ET AL., DEFENDANTS,
BUFFALO EMERGENCY ASSOCIATES, LLP AND RAQUEL
MARTIN, D.O., DEFENDANTS-APPELLANTS.


DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered April 6, 2010 in a medical malpractice
action. The judgment awarded plaintiffs money damages against
defendants Buffalo Emergency Associates, LLP and Raquel Martin, D.O.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by granting that part of the post-
trial motion to set aside the verdict and for a new trial with respect
to the award of damages for loss of consortium only, and as modified
the judgment is affirmed without costs and a new trial is granted on
that element of damages only unless plaintiffs, within 20 days of
service of a copy of the order of this Court with notice of entry,
stipulate to reduce the award of damages for loss of consortium to
$200,000, in which event the judgment is modified accordingly and as
modified the judgment is affirmed without costs.

     Memorandum: Marguerite Horn (decedent) was treated at defendant
Catholic Health System, doing business as Mercy Hospital of Buffalo
(Mercy Hospital), after her husband, plaintiff Joseph Horn, discovered
that she was unresponsive. Although decedent regained consciousness,
she again became unresponsive when she suffered a seizure while at
Mercy Hospital. After decedent developed respiratory problems,
defendant Raquel Martin, D.O., the emergency room physician treating
decedent, concluded that decedent needed to be intubated. Following
two unsuccessful attempts by Dr. Martin to place an endotracheal tube
in decedent’s throat, Dr. Martin directed at least two other persons
to attempt to place the tube. When those attempts failed, an
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                                                         CA 10-01418

anesthesiologist was summoned, and he successfully intubated decedent.
At some point during the intubation procedure, Dr. Martin and others
observed a subcutaneous emphysema under decedent’s skin, but it was
not until several days later that physicians discovered that
decedent’s esophagus had been perforated during the intubation
procedure. The perforation could not be repaired, and a feeding tube
therefore was inserted into decedent’s stomach. As a result, decedent
was never again able to consume solid foods or liquids normally.

     Decedent and her husband commenced this medical malpractice
action against multiple defendants seeking damages for the perforated
esophagus and the injuries related thereto. Following decedent’s
death from causes unrelated to the alleged malpractice, plaintiffs
Marcia A. Wild and Thomas F. Horn were substituted as plaintiffs in
their capacity as co-executors of decedent’s estate. The matter
proceeded to trial and the jury, having found that only Dr. Martin was
negligent, awarded $500,000 for decedent’s pain and suffering and
$500,000 for her husband’s derivative cause of action.

     We reject the contention of Dr. Martin and her partnership,
defendant Buffalo Emergency Associates, LLP (collectively,
defendants), that Supreme Court exhibited bias in favor of plaintiffs
or abused its “broad authority to control the courtroom, rule on the
admission of evidence, elicit and clarify testimony, expedite the
proceedings and to admonish counsel and witnesses when necessary”
(Carlson v Porter [appeal No. 2], 53 AD3d 1129, 1132, lv denied 11
NY3d 708 [internal quotation marks omitted]). We agree with
defendants, however, that the court erred in permitting plaintiffs to
attempt to impeach defendants’ expert during plaintiffs’ cross-
examination of that expert by playing an instructional DVD that he had
helped to edit and finance, inasmuch as the expert testified that he
did not accept the DVD as authoritative (see Winiarski v Harris
[appeal No. 2], 78 AD3d 1556, 1557-1558). Under the circumstances of
this case, however, we conclude that the error does not warrant
reversal (see id.).

     Defendants further contend that the court erred in charging the
jury with respect to proximate cause and, although we agree, we
conclude that the error is harmless. The claims against defendants
fell into two categories. The first category was that Dr. Martin was
negligent during the intubation procedure, thereby causing the
perforated esophagus (commission theories), and the second category
was that she failed to chart or to follow up on the perforation,
thereby causing a delay in the diagnosis of the perforation and
depriving decedent of some possibility that the perforation could be
repaired and the feeding tube avoided (omission theories). The claims
against the other defendants were all based on their failure to
diagnose and to treat the perforated esophagus.

     In instructing the jury on causation, the court used only the
loss of chance instruction (see generally 1 NY PJI3d 2:150, at 846-848
[2011]; Jump v Facelle, 275 AD2d 345, 346, lv dismissed 95 NY2d 931,
lv denied 98 NY2d 612; Cannizzo v Wijeyasekaran, 259 AD2d 960, 961).
As defendants correctly conceded at oral argument of this appeal, that
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                                                         CA 10-01418

instruction was entirely appropriate for the omission theories (see
e.g. Goldberg v Horowitz, 73 AD3d 691, 694; Flaherty v Fromberg, 46
AD3d 743, 745-746; Jump, 275 AD2d at 346; Stewart v New York City
Health & Hosps. Corp., 207 AD2d 703, 704, lv denied 85 NY2d 809; cf.
Cannizzo, 259 AD2d at 961). We agree with defendants, however, that
it was not an appropriate instruction for the commission theories.
With respect to those theories, the issue was whether the negligent
act was a substantial factor in bringing about the injury, i.e., the
perforated esophagus. The standard charge on proximate cause found in
PJI 2:70 conveys the proper legal standard for the commission theories
of negligence and should have been given (see 1 NY PJI 2:150, at 816).

     Under the circumstances of this case, the error in the jury
charge on proximate cause does not warrant reversal. Pursuant to CPLR
2002, “[a]n error in a ruling of the court shall be disregarded if a
substantial right of a party is not prejudiced” (see e.g. Stalikas v
United Materials, 306 AD2d 810, 811, affd 100 NY2d 626; Murdoch v
Niagara Falls Bridge Commn., 81 AD3d 1456, 1457-1458, lv denied ___
NY3d ___ [June 9, 2011]; cf. Gagliardo v Jamaica Hosp., 288 AD2d 179,
180). Here, no substantial right of defendants was prejudiced. Even
if the court had given the correct charge on causation for the
commission theories, we conclude that the result would have been the
same. Under the commission theories, “a finding of negligence
necessarily entailed a finding of proximate cause” inasmuch as it is
undisputed that decedent’s esophagus was perforated during the
intubation procedure (Young v Gould, 298 AD2d 287, 288; see Ahr v
Karolewski, 32 AD3d 805, 806-807; Brenon v Tops Mkts. [appeal No. 2],
289 AD2d 1034, 1034-1035, lv denied 98 NY2d 605; Stanton v Gasport
View Dairy Farm, 244 AD2d 893, 894). Thus, if the jury found that
defendant was negligent based on one or more of the omission theories,
then the instruction was proper and there was no error. On the other
hand, if the jury found that defendant was negligent based on one or
more of the commission theories, then the error in the charge is
harmless.

     Even assuming, arguendo, that the error insofar as it concerned
the commission theories is not harmless, we nevertheless would not
reverse the judgment based on that error. Although defendants’
attorney conceded at oral argument of this appeal that the instruction
on causation was proper for the omission theories, he contended that
reversal was nevertheless required because the jury returned only a
general verdict, and it therefore was unclear whether the verdict was
based on the omission or commission theories. We agree with
defendants that reversal generally is required when a general verdict
sheet has been used and there is an error affecting only one theory of
liability. Under those circumstances, appellate courts are forced to
engage in speculation to determine whether the error affected the
jury’s verdict (see generally Davis v Caldwell, 54 NY2d 176, 179-180;
Cohen v Interlaken Owners, 275 AD2d 235, 237; Hanratty v City of New
York, 132 AD2d 596; Jasinski v New York Cent. R.R., 21 AD2d 456, 462-
463). Here, however, reversal is not required because defendants, as
the parties asserting an error resulting from the use of the general
verdict sheet, failed to request a special verdict sheet or to object
to the use of the general verdict sheet (see Suria v Shiffman, 67 NY2d
                                 -4-                           804.3
                                                         CA 10-01418

87, 96-97, rearg denied 67 NY2d 918; Kahl v Loffredo, 221 AD2d 679,
679-680). Thus, we agree with the contention of plaintiffs’ attorney
at oral argument of this appeal that defendants may not now rely on
the use of the general verdict sheet as a basis for reversal.

     Finally, we agree with defendants that the award of $500,000 to
decedent’s husband for loss of consortium deviates materially from
what would be reasonable compensation (see CPLR 5501 [c]). Based on
the evidence presented at trial, we conclude that an award of $200,000
is the maximum amount that the jury could have awarded. We therefore
modify the judgment accordingly, and we grant a new trial on damages
for loss of consortium only, unless plaintiffs, within 20 days of
service of a copy of the order of this Court with notice of entry,
stipulate to reduce that award to $200,000, in which event the
judgment is modified accordingly.




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
