GEFFNER v. NORTH SHORE UNIVERSITY HOSPITAL (2008)

In an action, inter alia, to recover damages for medical malpractice, wrongful death, and lack of informed consent, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Dollard, J.), dated March 30, 2007, which (a) denied her motion, inter alia, to strike the answer of the defendant North Shore University Hospital based on spoliation of evidence and to hold that defendant in civil contempt for violating two temporary restraining orders of the same court dated June 4, 2002, and October 10, 2002, respectively, and (b) granted the separate cross motions of the defendants Steve W. Rucker, Jim N. Hilepo, and J. Ezra Haller, and the defendant North Shore University Hospital for summary judgment dismissing the complaint insofar as asserted against them, (2) as limited by her brief, from so much of an order of the same court (O'Donoghue, J.), dated May 2, 2007, as denied the plaintiff's motion, inter alia, to strike the papers of the defendant North Shore University Hospital submitted in opposition to her prior motion to strike the answer of that defendant, and (3) from a judgment of the same court (Dollard, J.), dated May 10, 2007, which, upon the order dated March 30, 2007, is in favor of the defendants Steve W. Rucker, Jim N. Hilepo, J. Ezra Haller, and North Shore University Hospital and against her, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeals from the orders are dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeals from the intermediate orders are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to strike the answer of the defendant North Shore University Hospital (hereinafter North Shore) based on spoliation of evidence.  “The court has broad discretion in determining the sanction for spoliation of evidence and may, under the appropriate circumstances, impose a sanction if the destruction occurred through negligence rather than willfulness” (Molinari v. Smith, 39 A.D.3d 607, 608, 834 N.Y.S.2d 269;  see Dean v. Usine Campagna, 44 A.D.3d 603, 605, 845 N.Y.S.2d 62).   Although reluctant to strike a pleading absent willful or contumacious conduct, courts will consider the prejudice resulting from spoliation in determining whether such drastic action is necessary as a matter of elementary fairness (see Dean v. Usine Campagna, 44 A.D.3d at 605, 845 N.Y.S.2d 62;  De Los Santos v. Polanco, 21 A.D.3d 397, 398, 799 N.Y.S.2d 776;  Favish v. Tepler, 294 A.D.2d 396, 741 N.Y.S.2d 910).   Where a party's negligent loss or destruction of evidence does not deprive its opponent of a means to present or defend against a claim, striking a spoliator's pleading is not warranted (see Dean v. Usine Campagna, 44 A.D.3d at 605, 845 N.Y.S.2d 62;  E.W. Howell Co. Inc. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 655, 828 N.Y.S.2d 212;  De Los Santos v. Polanco, 21 A.D.3d at 397-398, 799 N.Y.S.2d 776).   Here, there was no showing that North Shore willfully and contumaciously discarded specimens, samples, blood, bodily fluids, or any other physical matter of the plaintiff's decedent which it was directed to preserve pursuant to two temporary restraining orders (cf. DiDomenico v. C & S Aeromatik Supplies, 252 A.D.2d 41, 53, 682 N.Y.S.2d 452).   Furthermore, the failure to preserve certain specimens did not prevent the plaintiff from proving her case (see Denoyelles v. Gallagher, 40 A.D.3d 1027, 834 N.Y.S.2d 868;  Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525).

 The Supreme Court properly denied that branch of the plaintiff's motion which was to punish North Shore for civil contempt.   In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal court order, thereby impairing or prejudicing a right of another party to the litigation (see Judiciary Law § 753[A][3];  McCain v. Dinkins, 84 N.Y.2d 216, 225-226, 616 N.Y.S.2d 335, 639 N.E.2d 1132;  Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 584, 466 N.Y.S.2d 279, 453 N.E.2d 508;  Goldsmith v. Goldsmith, 261 A.D.2d 576, 577, 690 N.Y.S.2d 696).   Here, the plaintiff failed to demonstrate that North Shore's conduct in discarding certain specimens in violation of two temporary restraining orders was calculated to or actually did defeat, impair, impede, or prejudice her rights or remedies in any way (see Matter of Congregation Yetev Lev D'Satmar v. Kahana, 308 A.D.2d 447, 448, 764 N.Y.S.2d 140;  City of Poughkeepsie v. Hetey, 121 A.D.2d 496, 497, 503 N.Y.S.2d 589).

 The Supreme Court properly granted the separate cross motions of the defendants Steve W. Rucker, Jim N. Hilepo, and J. Ezra Haller (hereinafter the defendant doctors), and the defendant North Shore for summary judgment dismissing the complaint insofar as asserted against each of them.   The evidence submitted by the movants, including the affirmation and affidavit of North Shore's experts, James Strauchen and Jonas M. Goldstone, both physicians subcertified in hematology and medical oncology, in opposition to the plaintiff's motion and in support of their respective cross motions for summary judgment demonstrated, prima facie, that the defendant doctors did not depart from good and accepted medical practice (see CPLR 3212[b];  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853;  Hernandez-Vega v. Zwanger-Pesiri Radiology Group, 39 A.D.3d 710, 711, 833 N.Y.S.2d 627).   The burden then shifted to the plaintiff to lay bare her proof and to demonstrate the existence of a triable issue of fact (see Rosen v. John J. Foley Skilled Nursing Facility, 45 A.D.3d 558, 846 N.Y.S.2d 208;   Micciola v. Sacchi, 36 A.D.3d 869, 871, 828 N.Y.S.2d 572;  Kaplan v. Hamilton Med. Assoc., 262 A.D.2d 609, 610, 692 N.Y.S.2d 674).   The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage (see Spensieri v. Lasky, 94 N.Y.2d 231, 238, 701 N.Y.S.2d 689, 723 N.E.2d 544;  Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 262, 292 N.Y.S.2d 440, 239 N.E.2d 368;  Rosen v. John J. Foley Skilled Nursing Facility, 45 A.D.3d 558, 846 N.Y.S.2d 208;  Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121;  Mosezhnik v. Berenstein, 33 A.D.3d 895, 896, 823 N.Y.S.2d 459).   The plaintiff alleged that during the decedent's admission to North Shore, the defendant doctors engaged in numerous acts and omissions that were a competent producing cause of the decedent's death, including the misdiagnoses of the decedent as suffering from, inter alia, adenocarcinoma, the failure timely to diagnose and to treat an infection, and the overadministration of drugs.   To support her allegations, the plaintiff submitted the expert affidavit of Charles Phillips, a physician certified in emergency medicine.   Dr. Phillips' affidavit was of no probative value, however, as it contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v. Choong-Hee Lee, 51 A.D.3d 970, 859 N.Y.S.2d 250;  Mustello v. Berg, 44 A.D.3d 1018, 1018-1019, 845 N.Y.S.2d 86;  Behar v. Coren, 21 A.D.3d 1045, 1046-1047, 803 N.Y.S.2d 629).   In addition, the plaintiff submitted the affidavit of a pharmacist who rendered an opinion that drug overdosing was a proximate cause of the decedent's pain and suffering and death.   Even if the pharmacist were qualified to do so, he failed to render any expert opinion as to the appropriate standard of care for physicians in the administration and use of drugs in 2002 and what, if any, departures from that standard of care were committed by the defendant doctors (see Mustello v. Berg, 44 A.D.3d at 1019, 845 N.Y.S.2d 86;  Behar v. Coren, 21 A.D.3d at 1047, 803 N.Y.S.2d 629;  LaMarque v. North Shore Univ. Hosp., 227 A.D.2d 594, 594-595, 643 N.Y.S.2d 221).   Finally, the plaintiff submitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology and cytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering from myelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma.   Dr. Adelman's affirmations were insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failed to address the evidence relied upon by North Shore's experts in rendering their opinions that the diagnoses were correct (see Germaine v. Yu, 49 A.D.3d 685, 687, 854 N.Y.S.2d 730;  Fhima v. Maimonides Med. Ctr., 269 A.D.2d 559, 560, 703 N.Y.S.2d 743).

 The defendant North Shore established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's decedent was treated only by private attending physicians who were not its employees and, thus, it could not be held vicariously liable for any alleged malpractice (see Rose v. Horton Med. Ctr., 29 A.D.3d 977, 816 N.Y.S.2d 174;  Woodard v. LaGuardia Hosp., 282 A.D.2d 529, 530, 723 N.Y.S.2d 109).   The evidence submitted by the plaintiff in opposition failed to refute the opinions of North Shore's experts that no independent acts of negligence were committed by any employees of North Shore (see Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Woodard v. LaGuardia Hosp., 282 A.D.2d at 530, 723 N.Y.S.2d 109).

The plaintiff's remaining contentions are without merit.