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`To commence the 30-day statutory time period for appeals as of right under CPLR 5513 (a), you are advised to serve
`a copy of this order, with notice of entry, upon all parties.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`-----------------------------------------------------------------)(
`C L C Jr.'jan Infant by his Mother and Natural Guardian
`SYLVIA:IGREEN,
`
`Plaintiff,
`
`-against-
`
`Index No. 51356/14
`Motion Seq. Nos. 008, 009
`Amended Decision and Order
`
`WESTCHESTER MEDICAL CENTER, MICHAEL
`,
`KESSLER MD, GEETHA RAJENDRAN MD,
`ADVANCED OB/GYN ASSOCIATES,
`
`!
`
`Defendants.
`-----------------------------------------------------------------)(
`EVERETT,J.
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`The following papers were read on the motions:
`,
`Notice of Motion/Affirmation
`in Support/Exhibits A-C (docs 261- 265)
`R~ply Affirmation/Exhibit D (docs 281-282)
`
`in Support/Exhibit A (docs 268-270)
`Notice of Motion/Affirmation
`Reply Affirmation/Exhibit A (docs 279-280)
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`Affirmation in Opp (doc 276)
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`Iii this action sounding in medical malpractice, defendant Westchester Medical Center
`'I
`(WMC) moves, under motion sequence number 008, for an order, pursuant
`
`I
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`to CPLR 4404 (a),
`
`(
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`granting the following relief: (I) setting aside the jury's verdict
`
`in favor of pla)ntiff and directing
`
`judgment
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`in favor of WMC; or (2) setting aside the jury's verdict
`
`in favor of plaintiff and
`
`directing a new trial on all issues; (3) setting aside the jury's verdict
`
`in favor of plaintiff and
`
`I
`
`directing'la new trial on the issue of damages, unless plaintiff stipulates to a substantial
`
`reduction.
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`of the jury's awards; and (4) granting a hearing, pursuant
`
`to CPLR 4545,4546
`
`and 50-A, for the
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`purpose of identifying collateral sources and structuring a judgment; and (5) declaring that any
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`judgment entered reflect that portion of the award that provides for future medical expenses to
`be paid in accordance with Public Health Law 99 2999-g through 2999-j. Defendants Michael
`
`Kessler, M.D. (Kessler), Geetha Rajendran, M.D. (Rajendran) and Advanced Ob/Gyn Associates
`
`(Advanced Ob/Gyn) jointly move, under motion sequence number 009, for orders, pursuant
`
`to
`
`CPLR 4404 (a), 5031 and 550J, granting the following relief: (I) setting aside the jury's verdict
`
`and awarding judgment
`
`to defendants as a matter of law, or directing a new trial on the ground
`
`that the ve~dict was not based on a rational view of the evidence, or was contrary to the weight of
`
`the evidence; or (2) setting aside the jury's verdict and directing a new trial; or (3) conditionally
`
`reducing the awards for past and future pain and suffering because they deviate materially from
`
`what would be reasonable compensation; and (4) granting a hearing, pursuant
`
`to CPLR 4545,
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`4546 and 50-A, for the purpose of identifying collateral sources and structuring a judgment;
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`(5) declaring that any judgment entered reflect that portion of the award that provides for future
`medical expenses to be paid in accordance with Public Health Law 99 2999-g through 2999-j;
`
`and (6) staying the entry of judgment pending a decision on this motion and a hearing to
`
`determine the proper calculation of the judgment under CPLR 5031. The motions, under motion
`
`sequence numbers 008 and 009, are consolidated for disposition and upon the foreg.oing papers,
`
`the motions are decided as set forth below.
`
`The theory of plaintiffs
`
`case is that the proximate cause of her son's preterm delivery and
`
`permanent preterm birth related injuries and deficits were Kessler and/or Rajendran's
`
`respective
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`departures from accepted medical practice by their failures to offer a cerclage to address her
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`cervical insufficiency during any of her three hospital visits and/or admissions
`
`in July 2010.
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`2
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`Plaintiff seeks to hold WMC vicariously liable for the negligeilt ~cts and/or omissions of the
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`defendant physicians.
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`The case was tried before a jury. During the course of the trial, the parties produced
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`evidence relating to the central. issues of: (I) whether Rajendran departed from accepted medical
`
`practice by failing to offer plaintiff Sylvia Green (Green) a cerclage during the July 9-10
`
`admission; (2) whether Kessler departed from accepted medical practice by failing to timely
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`obtain a maternal fetal medicine (MFM) consult during the July 13-14 admission and during the
`
`July 15-16 admission;
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`(3) whether such departures were the proximate cause of the preterm
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`delivery Ofplaintiffs
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`son at 24 weeks gestation, and his related injuries and deficits; and (4)
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`whether Green reasonably believed, based on the words or conduct of WMC, that Rajendran and
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`Kessler were employees/agents of WMC, and accepted their services in reliance on the perceived
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`relationship, and not in reliance upon the skill of Rajendtan and Kessler. The jury's verdict, as
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`recorded-in the extract of May 17,2018, provides in relevant part:
`
`- Rajendran departed from accepted practice by not offering Green a cerclage
`during her July 9-10, 2010 admission, and that such departure was a proximate
`cause of the infant plaintiffs
`injuries.
`
`- Kessler departed from accepted practice by failing to timely obtain a MFM
`consult during Green's July 13-14, and 15-16,2010 admissions, and that such
`departure was a proximate cause of the infant plaintiff s injuries.
`
`I
`
`.
`
`The jury apportioned fault to Rajendran and Kessler equally.
`"
`.
`- Green reasonably believed, based on the words or conduct of WMC, that
`Rajendran and Kessler were employees or agents of WMC, and that she accepted
`their services in reliance upon the perceived relationship between these physicians
`arid WMC, and not in reliance upon their skills as physicians.
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`3
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`The jury awarded:
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`$5 million for past pain and suffering;
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`$I5 million for future pain and suffering for 69 years;
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`Future lost earnings in an annual amount of $ 113,000 for 39 years commencing
`on July 1,2032;
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`Home care (until age 21) in the annual amount of$54,000 for 13.17 years;
`
`Residential/Home
`56 years;
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`care (starting at age 2 I) in the annual amount of $163, 199 for
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`Physical therapy in the annual amount of$13,104 for 13.17 years;
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`Occupational
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`therapy in the annual amount of $17,004 for 13.I7 years;
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`Speech therapy in the annual amount of $17,784 for 13.17 years.
`
`As to defendants' contentions that the verdict should be set aside because it was not based
`
`on a rational view of the evidence, or was contrary to the weight of the evidence,
`
`it is well settled
`
`that: "a jury verdict should not be set aside as contrary to the weight of the evidence unless the
`
`jury could not have reached the verdict by any fair interpretation' of the evidence" (Victoria H v
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`Board of Educ. of City of N. Y, 129 AD3d 912, 912 [2d Dept 20 I 5] [internal quotation marks and
`
`citations omitted]). Furthermore:
`
`is not supported by
`"[f]or a court to conclude as a matter oflaw that a jury verdict
`sufficient evidence ...
`lit must] first conclude that 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. The criteria to be applied in making this assessment are essentially those
`required of a Trial Judge asked to direct a verdict.
`It is a basic principle of our
`law that it cannot be correctly said in any case where the right of trial by jury
`exists and the evidence presents an actual issue of fact, that the court may properly
`direct a verdict. Similarly,
`in any case in which it can be said that the evidence is
`such that it would not be utterly irrational for a jury to reach the result it has
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`4
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`determined upon, and thus a valid question of fact does exist, the court may not
`conclude that the verdict
`is as a matter oflaw not supported by the evidence"
`
`(Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978] [internal quotation marks and citations
`
`omitted]).
`
`Having presided at the trial, and upon review of the evidence in conjunction with the
`
`the Court finds that the jury's verdict on liability was neither against the weight
`
`instant motions,
`1
`of the evidence, nor was it inconsistent with a fair interpretation of the evidence.
`
`In
`
`circumstances such as this, "[w]here ... conflicting expert testimony is presented,
`
`the jury is
`
`entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff
`
`Hgts. Med. Ctr., 81 AD3d 587, 588 [2d Dept 2011]). To find, as defendants ask, that the jury's
`
`verdict was unsupported or against the weight of the evidence presented, wO'uld require the Court
`
`to find that plaintiffs
`
`experts were not worthy of belief. This Court, having heard the evidence,
`
`is not willing to make that finding (see Loughman v Flint Co., i32 AD2d 507, 510 [1s Dept
`
`1987]).
`
`As to those aspects of the consolidated motions which seek a reduction of the jury's
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`awards on the ground that the awards for past pain and suffering' ($5 million),
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`future pain and
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`suffering {$15 million over 69years),
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`lost earnings ($113,000 for 39 years) and future medical
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`expenses (as broken down above) are excessive,
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`the motion is resolved as follows.
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`In New York, "[t]he amount of damages to be awarded to a plaintiff
`
`for personal
`
`injuries
`
`is a question for the jury, and its determination will not be disturbed unless the award deviates
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`materially from what would be reasonable compensation"
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`(Peterson v MTA, 155 AD3d 795, 798
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`[2nd Dept 2017]), and "[t]he reasonableness of compensation must be measured against relevant
`
`5
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`precedent of comparable cases" (Halsey v New York City Tr. Auth., 114AD3d 726, 727 [2014]
`
`[internal quotation marks and citations omitted]).
`
`\.
`In Sence v Atoynatan (142 AD3d 600 [2d Dept 2016]); a medical malpractice case cited
`
`by both plaintiff and defendants involved a large jury verdict,
`
`including $4 million for past pain
`
`and suffering and $7,015,000 for future pain and suffering. The case centered on evidence that
`
`an infant sustained severe and permanent brain damage, with related deficits, as a result of the
`
`defendants' deviations from accepted standards of medical care. On appeal,
`
`the Appellate
`
`Division, Second Department, ~nding that the award for past pain and suffering deviated
`
`materially from what would be reasonable compensation, modified the entered judgment, and
`
`directed the parties to stipulate to reducing the amount to $2 million within a given period of
`
`time, and. in the absence .of such stipulation, remitting the matter to trial court for a new trial on
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`damages on the question of past pain and suffering.
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`While plaintiff cites to a series of cases which precede Sence by not less than 10 years,
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`and prior.to the creation of the New York Medical Indemnity Fund (MIF) in 2011, defendants
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`point to Reilly v Sf. Charles Hosp. & Rehabilitation Center (143 AD3d 692 [2d Dept 2016]),1
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`another medical malpractice action involving ajury finding ofliability for the severe birth-related
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`neurqlogical
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`injuries sustained by an infant plaintiff. The Reilly appeal was decided by the
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`Appellate Division, Second Department approximately two months after Sence, albeit by a
`
`different panel.
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`In its decision,
`
`the Appellate Court held, in relevant part. that the awards for past
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`and future pain and suffering ($10 million past, and $82.5 million future, for a total of $92.5
`
`I Plaintiff cites Reilly v St. Charles Ho.ip. & Rehabilitation Center for the purpose of
`showing that the jury's verdict
`in this action is not out ofline with the jury verdict rendered in
`another medical malpractice case involving a severe brain injury sustained at birth.
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`6
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`million) Were excessive and deviated materially from what would be reasonable compensation.
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`After downward modification,
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`the awards came to $750,000 past and $3.5 million future for a
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`total of $4,250,000. Defendants argue that, because the neurologic injuries sustained by the
`
`instant infant plaintiff are less severe than those sustained by the Reilly infant plaintiff,
`
`the
`
`damages awards must be reduced to a commensurate level.
`
`In view of the nature and extent of the injuries sustained by the infant in this action, and
`
`upon comparison to the pain and suffering awards rendered in this action to the pain and
`
`suffering awards rendered in other recent medical malpractice cases involving infants who
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`sustained brain injury at birth, the Court finds that the awards of $5 million (past) and $15
`
`million (future) materially deviate from what would be considered reasonable compensation (see
`
`Halsey v New York City Tr. Auth.; Quijano v American Tr. Ins. Co., 155 AD3d 981, 983-984 [2d
`
`Dept 2017]).
`
`It is suggested that the parties consider stipulating to reducing the awards to $2
`
`million for past pain and suffering and $7 million for future pain and suffering, sums which
`
`would be more reasonable in light of other similar medical malpractice actions.,
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`As to the jury's award for future lost earning, defendants' motions are denied, as the
`
`evidence presented by plaintiff's
`
`expert was substantial and compelling, and defendants, who did
`
`not offer an expert to address this issue, failed to adequately refute plaintiff's
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`evidence.
`
`The motions to set aside the balance of the jury award are also denied, as the awards,
`
`to the
`
`extent they are not reduced by virtue of the MIF,'which
`
`provides funds for future health care
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`2 Assuming plaintiff qualifies for the MIF, to the extent his future medical expenses are
`paid out of the MIF, rather than by the defendants,
`their payout will be reduced.
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`7
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`costs associated with birth-related neurological
`
`injuries resulting from medical malpractice, are
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`supported by the evidence.
`
`Regarding the jury's finding against WMC on the question of vicarious liability,
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`it is well
`
`settled that a medical facility, such as WMC, may be held liable, under the theory of vicarious
`
`liability, for the negligent acts or omissions of its employees, but not those of independent
`
`contractors/physicians who are not in its employ.
`
`It is also well settled that a hospital or medical
`
`facility (a principal) can, under the theory of apparent agency, and under certain circumstances,
`
`be held liable for the negligent acts or omissions of independent contractors/physicians who are
`
`not in its employ (see Hill v St. Clare's Hosp., 67 NY2d 72, 79-8 I [1986]).
`
`"Essential
`
`to the creation of apparent authority are words or conduct of the principal,
`
`communicated to a third party, that give rise to the appearance and belief that the agent possesses
`
`authority" to act on behalf of the principal (Hallock v State o/New York, 64 NY2d 224, 23 I
`
`[1984J; see Merrell-Benco Agency, LLC v HSBC Bank USA. 20 AD3d 605, 608 [2005],/v
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`dismissed and denied 6 NY3d 742 [2005]). A plaintiff seeking to hold a medical facility
`
`vicariously liable for the acts or omissions of a physician not in its employ must show that he or
`
`she reasonably relied on the appearance of authority based on "some misleading conduct on the
`
`part of the principal-not
`
`the agent" (Ford v Unity Hosp., 32 NY2d 464, 473 [1973J; see
`
`Merrell-Benco Agency, LLC v HSBC Bank USA, supra), and that he or she accepted the services
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`of the ostensible agent in reliance, not upon that person's skill, but based on his or ~er
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`relationship with the principal
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`(see Hill v St. Clare's Hosp., 67 NY2d at 82; Nagengast v
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`Samaritan Hosp., 211 AD2d 878, 880 (1995]).
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`Under the leading case of Mduba v Benedictine Hosp. (52 AD2d 450 [3d Dept 1976]), the
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`8
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`appellate court addressed the question of vicarious liability, and citing the Restatement of Torts,3
`
`determined that, because the defendant hospital held itself out to the public as a facility that
`
`furnishes doctors, staff and facilities for emergency treatment,
`
`it was:
`
`"under a duty to perform those services and is liable for the negligent performance
`of those services by the doctors and staff it hired and furnished to [the plaintiff].
`Certainly,
`the person who avails himself of hospital facilities has a right to expect
`satisfactory treatment from any personnel who are furnished by the hospital"
`
`(id. at 454).
`
`Upon a review of the evidence,
`
`the Court finds no cause to vacate the jury verdict
`
`ascribingvicarious
`
`liability to WMC for the actions of Kessler and Rajendrari. The evidence
`
`presented to the jury was that Green presented to nonparty ob/gyn Dr. Helen Hostin (Dr. Hostin)
`
`on July I, 20 I0, with complaints of right lower quadrant pain. Dr. Hostin referred Green to a
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`maternal fetal medicine (MFM) specialist for an ultrasound and evaluation, and based on these
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`results together with her own examination of Green several days later on July 6, 20 I0, Dr. Hostin
`
`admitted her to Nyack Hospital. Green was treated at Nyack Hospital until July 9, 2010, when
`
`Dr. Hostin transferred her, by ambulance,
`
`to WMC, because it was better equipped to treat
`
`Green's symptoms and a significantly premature ,infant.
`
`Upon her arrival at WMC, Green was seen by Rajendran, an MFM specialist. On the
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`evening of July 10,2010, Green, who was not offered a cerclage by Rajendran, was subsequently
`
`discharged by Kessler (who did not actually see or examine her), and a staff nurse gave her an
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`3 "One who employs an independent contractor to perform services for another which are
`accepted in the reasonable belief that the services are being rendered by the employer or by his
`servants,
`is subject to liability for physical harm caused by thc negligence of the contractor
`in
`supplying such services,
`to the same extent as though the employer were supplying them himself
`or by his servants" (Restatement, Torts 2d, S 429).
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`9
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`appointment
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`to see Rajendran approximately one week later. On the evening of July 13, Green,
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`who was experiencing certain symptoms (some spottinglbleeding) went to WMC. She was
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`discharged several hours later (at approximately 3:30 a.m., on July 14,2010) by Kessler, who
`
`was on call, but who did not actually see or examine her. On the evening of July 15,2010,
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`Green presented to WMC's emergency room complaining of contractions and vaginal spotting.
`
`Kessler, who was again on call, examined her, and admitted her to labor and delivery. Rajendran
`
`saw Green at approximately 9:00 a.m., the next morning, and spoke with her about the
`
`circumstances surrounding her preterm labor. The infant plaintiff, who was born at
`,
`approximately 10:40 a.m., was delivered by Kessler.
`
`WMC argues that, because the treatment Green received from Rajendran and from
`
`Kessler was initiated by her private physician, Dr. Hostin,' who had advised Green that she (Dr.
`
`Hostin) was going to contact her "colleagues" at WMC, the logical conclusion is that Green's
`
`private physician was referring her to private attending physicians at WMC. WMC also points to
`
`the fact that Green was given a follow-up appointment with Rajendran at Rajendran's off-
`
`premises office as further evidence that G,'een should have been aware that Rajendran was not on
`
`WMC's staff of employees. Finally, WMC argues that the inclusion of WMC's name on the
`
`letterhead of forms provided to Green to fill out with respecUo the different medical services
`
`being provided to her, is inadequate to establish that either Kessler or Rajendran was acting on its
`
`behalf, sufficient
`
`to confer an agency relationship.
`
`Although neither Rajendran nor Kessler were actually employed by WMC, the jury made
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`a determination that the circumstances
`
`surrounding Green's care and treatment at WMC were
`
`sufficient to find that she could have reasonably believed that these physicians were employees or
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`agents of WMC. Supporting the view that Green reasonably believed that, when she received
`
`treatment from Rajendran and Kessler, she was being treated by WMC employees,
`
`is Rajendran's
`
`trial testimony that: (I) when a patient comes to the hospital and needs a consult by an MFM,
`
`the MFM who attends that patient is the MFM on duty at that particular
`
`time (tr at 305);
`
`(2) she (Rajendran) was an employee ofWMC (tr at 109), which she changed several days
`
`later during cross examination;
`
`(3) she was uncertain whether Advanced Ob/Gyn was run by
`
`employees ofWMC (tr at 306); and (4) it was her understanding that Advanced Ob/Gyn was the
`
`faculty practice for WMC, and the teaching faculty for the hospital (tr at 305). Kessler was also
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`unable to state with certainty the nature of his relationship with WMC, testifying that Advanced
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`Ob/Gyn was "a group created just to be, I guess, a subgroup of the hospital," when he was asked
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`whether he was aware in 2010, of the exact affiliation between the group and WMC (tr at 138).
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`Moreover, Dr. Blanchette, whose pretrial deposition testimony was, in part, read into the record
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`during trial, provided evidence about the close nature of the relationship between WMC and the
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`individual defendants when he acknowledged that he was, simultaneously,
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`the director of
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`Ob/Gyn at WMC and the director of Advanced Ob/Gyn (if at J 052).
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`In rendering its verdict,
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`the jury might have also considered the facts that: (I) Green was
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`brought to WMC by ambulance from Nyack Hospital; (2) Green was sent to WMC for the
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`specialized prenatal services it could provide, and not for treatment by any particular physician,
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`regatdless of whether Dr. Hostin told her that she was going to contact her "colleagues" at
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`WMC; (3) when asked what her understanding was as to where the doctors who treated her were
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`working, Green stated that she believed them to be working for WMC, because that was where
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`she was being cared for; (4) Green was treated at WMC by physicians assigned to her on the
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`basis of their scheduled shifts/on call status at WMC, and not because she chose either of them,
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`.
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`had a prior relationship with either of them, or was a private patient of either of them; (5) prior to
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`the evening of July 15,2010, Green had never met Kessler,
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`the physician who discharged her
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`twice without ever speaking with her or examining her; (6) it was WMC staff, and not Green,
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`that set up the appointment
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`for her to see Rajendran off-premises (an appointment
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`she never kept
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`because she delivered her son days bef?re the scheduled appointment);
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`(7) the consent forms
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`displaying the WMC letterhead, which were given to Green by WMC staff, state (hat Green was
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`authorizing Rajendran and Kessler and "associates or assistants of his/her [the physician's)
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`choice at Westchester Medical Center ('WMC')
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`to perform" certain procedures on her, without
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`any explanation regarding the relationship between the facility, the treaters and the medi'cal
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`services being authorized and provided; and (8) neither Kessler, nor Rajendran, nor WMC
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`offered proof that they made any effort to dispel any (mis)understanding Green might have had as
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`to the nature of their professional
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`relationship. Based on the evidence before the jury,
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`the Court
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`cannot find that the jury's finding of vicarious liability is against the weight of the evidence.
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`As to that aspect of defendants' motion that seeks a mistrial on the grounds of plaintiff
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`counsel's summation,
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`the motion is denied. To the extent the defense's objections were
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`overruled on the ground that plaintiff counsel's
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`statements constituted fair comment on the
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`evidence, which did not exceed the wide bounds oflatitude
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`afforded to attorneys during
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`summation,
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`the Court stands by those rulings.
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`Granted, however, are those aspects of defendants' motions that seek: (1) a hearing,
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`pursuant to CPLR 4545, 4546 and Article 50-A, for the purpose of identifYing collateral sources
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`and structuring a judgment;
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`(2) an order declaring that any judgment entered reflect that portion
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`NYSCEF DOC. NO. 286NYSCEF DOC. NO. 308
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`of the award that provides for future medical expenses shall be paid in accordance with Public
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`Health La:-vss 2999-g through 2999-j.
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`I
`Accordingly,
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`it is
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`ORDERED that defendants' motions are granted to the extent that:
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`(lD unless plaintiff files a written stipulation consenting to a specific reduction of the
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`I
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`amount of damages for past and future pain and suffering to $2 million and $7 million
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`respectively, within 30 days of entry of this decision and order, the verdict
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`is set aside to the
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`extent thlit a new trial shall be held on the question of damages;
`
`!
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`(2) a hearing shall be conducted for the purpose of identifying collateral sources and
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`structuring a judgment; and
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`I(3:)with respect to any judgment entered in this action, the portion of the award that
`provides for future medical expenses must be paid in accordance with Public Health Law SS
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`2999-g through 2999-j, and the motions are otherwise denied; and it is further
`i
`ORDERED that the parties are directed to appear in the Settlement Conference Part on
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`Tuesday, June 4, 2019 at 9:15 a.m., to schedule a date for a new trial on damages and a date for a
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`collateral source hearing.
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`, !
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`This constitutes the decision and order of the Court.
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`Dated: White Plains, New York
`April 12,2019
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`ENTER:
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`HO
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`, J.S.c.
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`FILED: WESTCHESTER COUNTY CLERK 04/15/2019 09:42 PMFILED: WESTCHESTER COUNTY CLERK 07/11/2019 05:00 PM
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`NYSCEF DOC. NO. 286NYSCEF DOC. NO. 308
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`RECEIVED NYSCEF: 04/12/2019RECEIVED NYSCEF: 07/11/2019
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`Il
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`The Fitzgerald Law Firm, P.c.
`Martin Clearwater and Bell '
`Mauro Lilling Naparty
`Heidell, Pittoni, Murphy & Bach
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