LIDGE v. John L. DeFazio, M.D., Defendant-Respondent.  (Appeal No. 2.)

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Supreme Court, Appellate Division, Fourth Department, New York.

Terrence LIDGE and Cynthia Lidge, Individually and as Administrators of the Estate of Tamir Victor Lidge, Deceased, Plaintiffs-Appellants, v. NIAGARA FALLS MEMORIAL MEDICAL CENTER, Defendant, John L. DeFazio, M.D., Defendant-Respondent.  (Appeal No. 2.)

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Law Office of Joy A. Kendrick, J.D., M.B.A., Buffalo (Joy A. Kendrick of Counsel), for Plaintiffs-Appellants. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Daniel T. Roach of Counsel), for Defendant-Respondent.

Plaintiffs, individually and as administrators of the estate of their son, Tamir Victor Lidge (decedent), commenced this negligence and medical malpractice action against defendants to recover damages for the premature birth and subsequent death of decedent.

 During the course of the litigation, disputes arose over discovery matters, and Supreme Court issued three discovery orders.   Plaintiffs contend that the court erred in failing to enforce those orders and in impermissibly reconsidering previously issued orders.   We reject that contention.  “[E]very court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” (Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851;  see Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835).   Furthermore, our review of a determination denying sanctions is limited to whether the court abused or improvidently exercised its discretion (see Kimmel v. State of New York, 267 A.D.2d 1079, 1080, 700 N.Y.S.2d 634;  Herrera v. City of New York, 238 A.D.2d 475, 476, 656 N.Y.S.2d 647), and we conclude that the court properly exercised its discretion in denying plaintiffs' motion for sanctions (see Wolfson v. Calamel, 162 A.D.2d 959, 959-960, 557 N.Y.S.2d 183;  cf. Emanuel v. Broadway Mall Props., 293 A.D.2d 708, 709, 741 N.Y.S.2d 278;  Vancott v. Great Atl. & Pac. Tea Co., 271 A.D.2d 438, 705 N.Y.S.2d 640).

 Shortly before trial plaintiffs retained a new expert because their prior expert was “uncooperative.”   Plaintiffs submitted new expert disclosure pursuant to CPLR 3101(d)(1)(i) and moved for leave to amend the complaint to add two causes of action based on an alleged violation of the Emergency Medical Treatment and Active Labor Act of 1986 ( [EMTALA] 42 USC § 1395dd).   We conclude that the court properly denied plaintiffs' motion inasmuch as it was made on the eve of trial and plaintiffs failed to show “ extraordinary circumstances to justify amendment” (Jablonski v. County of Erie, 286 A.D.2d 927, 928, 730 N.Y.S.2d 626;  see Heller v. Louis Provenzano, Inc., 303 A.D.2d 20, 24, 756 N.Y.S.2d 26).   Plaintiffs failed to submit an affidavit of merit or other evidentiary proof supporting the amendment (see Danne v. Otis El. Corp., 276 A.D.2d 581, 582, 714 N.Y.S.2d 316;  Reape v. City of New York, 272 A.D.2d 533, 708 N.Y.S.2d 131;  Weller v. Colleges of the Senecas, 261 A.D.2d 852, 852-853, 689 N.Y.S.2d 588, lv. denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925).   In any event, the proposed amendment lacked merit.   There is no private right of action against individual physicians under EMTALA (see Almond v. Town of Massena, 237 A.D.2d 94, 96, 667 N.Y.S.2d 475;  Brenord v. Catholic Med. Ctr. of Brooklyn & Queens, 133 F.Supp.2d 179, 186), and plaintiffs alleged only faulty screening, not disparate screening, by defendant Niagara Falls Memorial Medical Center (Hospital) (see Lear v. Genesee Mem. Hosp., 254 A.D.2d 707, 708, 678 N.Y.S.2d 228, lv. dismissed 92 N.Y.2d 1045, 685 N.Y.S.2d 422, 708 N.E.2d 179;  Brenord, 133 F.Supp.2d at 185).

 We further conclude that the court properly precluded testimony from plaintiffs' expert that exceeded the scope of the expert disclosure inasmuch as defendants established that they were prejudiced by plaintiffs' failure to include alleged theories of negligence in the expert disclosure (see Conroe v. Barmore-Sellstrom, Inc., 12 A.D.3d 1121, 1123, 785 N.Y.S.2d 629;  Atkinson v. Golub Corp. Co., 278 A.D.2d 905, 906, 718 N.Y.S.2d 546;  cf. Neumire v. Kraft Foods, 291 A.D.2d 784, 786, 737 N.Y.S.2d 457, lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186;  Maldonado v. Cotter, 256 A.D.2d 1073, 1074, 685 N.Y.S.2d 339).

 At the close of plaintiffs' case, the Hospital moved to dismiss the complaint against it and defendant John L. DeFazio, M.D. moved to dismiss the individual cause of action of Cynthia Lidge (plaintiff) against him.   The court properly granted both motions.   Plaintiffs' expert did not testify that any Hospital personnel deviated from an applicable standard of care.   The expert also failed to establish any basis of liability by DeFazio to plaintiff individually.   Contrary to plaintiffs' contention, the testimony of plaintiff and her husband that one Hospital physician erred in using an incorrectly sized mask on decedent during resuscitation efforts was insufficient to establish the Hospital's liability.   That theory of liability necessarily involves matters of medical science requiring professional skill and knowledge and, therefore, constituted a medical malpractice theory of liability, which must be supported by expert medical testimony that there was a deviation from the standard of care (see Petrillo v. Leather, 247 A.D.2d 368, 369-370, 668 N.Y.S.2d 637;   Smee v. Sisters of Charity Hosp. of Buffalo, 210 A.D.2d 966, 967, 620 N.Y.S.2d 685;  cf. Cegielski v. St. Francis Home, 222 A.D.2d 1010, 636 N.Y.S.2d 677).   Thus, there was “no rational process by which the fact trier could base a finding in favor of [plaintiffs]” on the causes of action against the Hospital or plaintiff's individual cause of action against DeFazio (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  see e.g. Cruz v. St. Luke-Roosevelt Hosp. Ctr., 280 A.D.2d 317, 722 N.Y.S.2d 490;  Storniolo v. Bauer, 176 A.D.2d 550, 550-551, 574 N.Y.S.2d 731, lv. denied 79 N.Y.2d 752, 580 N.Y.S.2d 199, 588 N.E.2d 97).

 Finally, we conclude that the court did not abuse its discretion in denying plaintiffs' motion for a mistrial inasmuch as two fleeting references to precluded evidence did not create a “ ‘substantial possibility of injustice’ ” (Everding v. Bombard, 272 A.D.2d 937, 938, 707 N.Y.S.2d 586, quoting Hannon v. Dunkirk Motor Inn, 167 A.D.2d 834, 834, 562 N.Y.S.2d 248).   The court, however, erred in settling the record on appeal from the judgment.   The proposed amended complaint and expert disclosure statements should have been included in the record of that appeal.   We therefore modify the order in appeal No. 4 accordingly.   Those documents have been considered in our review of the appeal from the judgment.

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

MEMORANDUM: