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

90
CA 11-00643
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


PATRICIA KARAM, AS ADMINISTRATRIX OF THE ESTATE
OF TONY KARAM, DECEASED, AND PATRICIA KARAM,
INDIVIDUALLY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ADIRONDACK NEUROSURGICAL SPECIALISTS, P.C.,
ET AL., DEFENDANTS,
ST. ELIZABETH MEDICAL CENTER AND TIMOTHY EDWARD
PAGE, DEFENDANTS-RESPONDENTS.


POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), MARK L.
BODNER, PC, NEW YORK CITY, FOR PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (LAURENCE F. SOVIK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Oneida County
(Bernadette T. Clark, J.), entered December 7, 2010 in a medical
malpractice and wrongful death action. The judgment dismissed the
complaint.

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

     Memorandum: Plaintiff, as administratrix of the estate of Tony
Karam (decedent) and individually, appeals, as limited by her brief,
from a judgment insofar as it dismissed the complaint against St.
Elizabeth Medical Center (Hospital) and Timothy Edward Page
(collectively, defendants), following a jury verdict in favor of all
defendants in this medical malpractice and wrongful death action. We
note at the outset that plaintiff failed to raise any issues with
respect to the judgment insofar as it dismissed the complaint against
defendants Adirondack Neurosurgical Specialists, P.C. and Walter
George Rusyniak, Jr., and we therefore deem any such issues abandoned
(see Ciesinski v Town of Aurora, 202 AD2d 984).

     Decedent sustained a head injury and was taken to the Hospital,
where he was admitted at 10:26 A.M. and examined by Page, an emergency
physician, at approximately 11:01 A.M. Although decedent appeared
neurologically normal at that time, Page ordered a head CT scan. The
CT scan, which was performed between 11:39 A.M. and 11:46 A.M.,
revealed a subdural hematoma, but no evidence of midline shift or mass
effect. Decedent had sustained prior subdural hematomas in 2001 and
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                                                         CA 11-00643

2005.

     At 12:05 P.M., after reviewing the CT scan results, Page
telephoned Rusyniak, who was the neurosurgeon on call at the time
although he was away from the Hospital, and informed him that decedent
had a small subdural hematoma and was neurologically normal. At some
point, Page became aware that decedent’s neurological condition was
deteriorating. He reported that development to Rusyniak at 12:58
P.M., and Rusyniak ordered a second CT scan. The second CT scan
demonstrated that the hematoma had grown much larger, and midline
shift and mass effect were visible. Rusyniak performed a craniotomy
to remove the hematoma, and decedent never regained consciousness
after the operation.

     According to plaintiff, defendants were negligent in, inter alia,
failing to apprise Rusyniak of changes in decedent’s condition in a
timely manner. The trial focused on the time at which decedent began
to deteriorate neurologically. A note in decedent’s emergency room
record entered by nurse Richard Dodge, reportedly at 11:23 A.M.,
stated that decedent was vomiting and starting to complain of a severe
headache and that he was beginning to deteriorate in condition. That
note described decedent’s speech as “clear” and “[n]ormal,” and his
skin as “warm [and] dry,” but the note also described his skin as
“[m]oist [and] sweaty.” Several witnesses testified for plaintiff
that decedent began to deteriorate between 11:00 A.M. and 11:30 A.M.
Page testified that the Hospital’s computer system had been in place
for only a few months at the time decedent was treated and that
Dodge’s note was inconsistent. He stated that it sometimes appeared
“as if there were gremlins in [the] computer system.” Page further
testified that it was possible that some of the entries for the 11:23
A.M. note had in fact been made at 12:35 P.M. Counsel for defendants
admitted that, by procuring such testimony from Page, he was
impeaching in part defendants’ own record.

     Counsel for defendants subsequently attempted to introduce an
“audit trail” of the computer system establishing that much of the
11:23 A.M. note was made at a later time. Supreme Court expressed its
concern that the attempt to introduce the audit trail constituted
“unfair surprise” and “trial by ambush.” In response, defendants’
counsel indicated that the proper remedy would be to grant a mistrial.
Plaintiff’s counsel opposed that remedy and instead requested that the
court impose monetary sanctions against defendants’ counsel. The
court denied defendants’ request to allow evidence of the audit trail
and for a mistrial and declined to impose sanctions. Earlier in the
trial, the court had denied plaintiff’s request for a cautionary
instruction that any belated evidence introduced concerning the
computer “gremlins” should be disregarded by the jury. The jury
ultimately returned a verdict finding no negligence on the part of any
defendant.

     Plaintiff failed to preserve for our review her contention that
defendants’ presentation of evidence regarding computer problems with
respect to the 11:23 A.M. note denied her a fair trial. Plaintiff did
not seek an adjournment of the trial or a mistrial (see Romeo v
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                                                        CA 11-00643

Haranek, 15 AD2d 588, 589; see also Oubre v Carpenter, 241 AD2d 964).
Indeed, plaintiff opposed defendants’ request for a mistrial (see Boyd
v Manhattan & Bronx Surface Tr. Operating Auth., 79 AD3d 412, 413).
We decline to grant plaintiff the relief she now seeks when that
relief was available during trial.

     Plaintiff’s further contention that the court erred in allowing a
witness to recant his testimony is without merit (see generally Matter
of Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85
AD3d 780, 781, lv denied 18 NY3d 803). Plaintiff failed to preserve
for our review her contention that the summation of defendants’
counsel was improper (see Short v Daloia, 70 AD3d 1384, 1384-1385).
We decline to address that contention in the interest of justice,
although we note that the behavior of defendants’ counsel was
reprehensible. The tactics of counsel, including his inflammatory
comments on summation, “can hardly be considered a service to his
clients and certainly constitute[] a disservice to the court” (Mena v
New York City Tr. Auth., 238 AD2d 159, 160).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
