Ortiz v Jaber

[*1] Ortiz v Jaber 2005 NY Slip Op 50395(U) Decided on March 29, 2005 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2005
Supreme Court, Kings County

Elba Ortiz and Feliz Ortiz, Plaintiffs,

against

Ahmad Mahmoud Jaber, M.D., Ahmad M. Jaber, M.D., P.C., and Lutheran Medical Center, Defendants.



9595/97

Herbert Kramer, J.

This is the first trial held in the State of New York upon the question of a hospital's negligence in failing to appropriately review an attending physician's credentials before renewing his staff privileges.



Plaintiff's Claims

Plaintiffs proceeded upon three claims. The first claim involved the hospital's failure to use reasonable care in reviewing and evaluating the doctor's 1997 application for the continuation of his privileges.

The second claim asserted that the hospital violated Public Health Law §2805-J in that it failed to maintain a program for the identification and prevention of malpractice and specifically failed to periodically review the credentials, capacity and competence of the physician and failed to maintain and continuously collect information concerning the hospital's experience with negative health care outcomes and incidents injurious to patients, patient grievances, professional [*2]liability premiums, settlements, awards, costs incurred by the hospital for patient injury prevention and safety improvement activities.

The third claim was that the hospital violated its own by-laws insofar as it failed to follow the procedures therein outlined for the reappointment /renewal of clinical privileges.

The Frye Hearing

The primary evidence produced by the plaintiffs in support of these claims was the fact that there were a certain number of malpractice cases filed against Dr. Jaber. They argued that the hospital should have known about and investigated every claim as required in its by-laws and that the gross number of cases, without more, demonstrated that the hospital was derelict in its duty.

However, since the vast majority of these cases were either settled, discontinued , withdrawn, dismissed or closed, this court wanted to understand, from the scientific/ professional point of view, how cases that never went to judgment are evaluated by peer review committees in making decisions to grant or deny hospital privileges. In other words, what information does a committee glean from the existence of a case that never ripened into a judgment on the merits.

Accordingly, this Court held a Frye hearing at which plaintiffs' professional peer review expert testified. He was asked how the amount of a settlement would be pertinent or relevant to his review and he answered that a larger settlement usually means a more significant negative outcome, that is, that more damage was done, in some way, to the patient. As to the relevance of cases that were disposed of without settlement amounts, dismissed or discontinued, his response was that they were also "negative outcomes." However, neither at this hearing nor at trial did this witness ever demonstrate how cases that were settled, or otherwise disposed of connected the hypothetical "negative outcome" that they supposedly demonstrated to any incompetence on the part of the doctor.

Instead, the plaintiffs' expert acknowledged that the mere filing of a malpractice claim is not an indication of liability or negligence or professional misconduct on the part of the physician against whom it's asserted. As an expert in medical quality assurance, he also admitted that the settlement of a medical malpractice claim is never an acknowledgment of liability or professional negligence on the part of the settling physician.

Pre-Trial Ruling

In deciding what aspect of the malpractice claims to allow , this Court had to grapple with several factors. First, there are statutory privileges that protect the hospital's peer review file. Education Law §6527(3)("records relating to performance of a medical or a quality assurance review function"); Public Health Law 2805-m (confers complete confidentiality on materials collected in accordance with Public Health Law §§ 2805-j, 2805-k(1)). These privileges placed the plaintiffs at somewhat of a disadvantage with respect to the question of what the hospital actually knew about the doctor. However, plaintiffs were not precluded from bringing evidence of the doctor's negligence from sources outside of the hospital's file, and could have adduced evidence with respect to the allegedly negligent acts, but did not do so.

Further, from the legal perspective, complaints or claims, without more, are not evidence of liability. Thus, while the Public Health Law and the hospital's by-laws required the [*3]collection of information about settlements and malpractice insurance premiums, this information has no probative value at law. Cassetta Frank, Inc. v. P.G.C. Assoc., 264 AD2d 375(2d Dept. 1999); Randall Elec., Inc. v. State, 150 AD2d 875(3d Dept. 1989); Bevilacqua v. Gilbert, 143 AD2d 213(2d Dept. 1988). See also Tennant v. Dudley, 144 NY 504 (1895); White v. Old Dominion, S.S. Co., 102 NY 661(1886). In an effort to balance the equities in this matter, this Court allowed reference to be made to the malpractice claims by title, but did not allow any discussion of settlement, discontinuance or other results.[FN1] Defense counsel waived the confidentiality as to the hospital's malpractice questionnaire and argued that letting the jury hear of the gross number of claims without their knowing that the majority of them were dismissed, settled or closed was highly prejudicial.

The Trial

Dr. Davis, the plaintiffs' credentialing expert who testified at the Frye hearing testified at trial. This expert was asked to assume that there were fourteen cases that were known or which should have been known to the hospital at the time they reviewed the doctor's 1997 application and based upon that assumption, he was asked whether that number is acceptable or not. The witness responded, "In my opinion it is an excessive number of cases for the physician and the hospital . . . it creates a problem for the physicians and the hospital. . . the chairman of the department who has to review these and certainly for the credentialing committee in doing re-credentialing. It's an excessive number of cases." The expert was again asked about an apparent five additional cases and the expert reiterated that it was "even more excessive, and it means that this physician needs some sort of help through the re-credentialing process . . . but it means that the doctor needs monitoring, it means help. It means that things have to be done by the hospital to improve his quality of care."

In contradiction to his Frye hearing testimony, this expert then testified that in quality assurance they are concerned with negative health care outcomes so the manner by which the law suit was either resolved or not resolved tried or not tried to verdict settled or otherwise is not the issue for them. The witness testified that if the head of the department knew about the twenty cases he was acting irresponsibly in recommending the continuation of Dr. Jaber's [*4]privileges without monitoring supervision or curtailing.[FN2]

Discussion

This Court is forced to conclude that the evidence adduced of malpractice claims without more did not sustain this jury's verdict. Even had the jury been permitted to hear that a given claim was "settled" or "closed with no payment made," the jury would not have been able to draw any inferences from this information because a settlement is not probative of any matter sought to be established by the underlying claim. Though plaintiffs' expert's testimony was seemingly to the contrary, it is to the Court rather than to an expert that we must turn when assessing the applicability of legal principles to a given set of facts and this Court so holds.

Further, this Court holds, that when a Frye hearing is held, the expert's testimony at trial cannot vary or contradict the Frye hearing testimony and any such contradictory testimony cannot sustain a verdict. In that light, plaintiffs' expert's assertion that the existence of a malpractice claim indicates that the patient had a negative health care outcome is misleading and is of no probative significance. Even assuming arguendo that [FN3] this is true, since a complaint in a [*5]malpractice action does not as this jury was told more than once signify that the doctor was negligent, there is no evidence linking that so called negative health care out come to any act or omission of the physician. Thus there was no testimony in this case to sustain the claim that it was unreasonable for the hospital to conclude that Dr. Jaber was incompetent based upon the fact that malpractice claims were made against him.[FN4] Consequently, there was no showing made that the defendant hospital acted unreasonably, or in violation of statute or by-laws in re-credentialing Dr. Jaber. And the jury's verdict which found to the contrary was based upon the absence of evidence, on sheer speculation and was made in the face of this Court's repeated instructions that a claim is not evidence. Thus "[n]o valid line of reasoning and permissible inferences [existed] which could possibly lead rational men to the conclusion . . reached by the jury on the basis of the evidence presented at trial." Cohen v. Hallmark Cards, 45 NY2d 493, 498(1979).

Accordingly, the verdict reached by the jury in favor of the plaintiff is not supported by sufficient evidence as a matter of law, Cohen, supra, and the verdict is hereby set aside pursuant to CPLR §4404(a) and the complaint is dismissed.

If this Court were not setting the verdict aside upon insufficient evidence as a matter of law, it would set aside the verdict and grant a new trial because it believes that an error it made may have prejudiced the defense and skewed the verdict in this case and because the verdict was against the weight of the evidence. As to the error, in retrospect, this Court should have allowed this jury to learn of the dispositions of the cases. In the absence of this evidence, the jury was unable to see for itself that the dispositions were not on the merits and thus was permitted to speculate upon twenty one cases, and notwithstanding this Court's charge, to decide that where there is smoke there is fire and in so doing improperly second guess the credentialing committee.

The verdict is set aside and the complaint is dismissed.

This constitutes the decision and order of the Court.

J.S.C. Footnotes

Footnote 1: This Court therefore instructed the jury in the course of the trial that "A complaint in this case is an accusation. It is not evidence of guilt, negligence, or anything else. Just like an indictment in a criminal case is nothing more than an accusation. It remains to be proven in some fashion, either criminally in front of a jury, or in a civil case by . . . a preponderance of the evidence that the claim being made is true. And that was true in this case, it's true in every other one of those listed cases. You may not assume that [sic: from] the fact of a complaint anything."During the course of the charge, this court reminded the jury that a complaint or a claim in this case or any other case is merely and accusation, it is not evidence of guilt, negligence or anything else.

Footnote 2: Defense counsel made a record out of the presence of the jury of the resolution of the majority of the cases on the list of twenty one cases that was admitted into evidence. 1.1979 Munson File closed, no payment made 2.Lopez File closed, no payment made 3.DeJesusSettled, $30,000 4.HernandezFile closed, no payment made 5.GomezDefendant's verdict by jury 6.Rosario/Ramirezsettled. 7.SchaffeyCase closed, no payment made, action Withdrawn by plaintiff. 8.SotoCase closed no payment made 9.AmoreCase dismissed no payment made. 10.MarreroSettled 11.FabrizzioSettled 12.CorbittSettled 13.Mercato Settled 14.McCabeSettled 15Alzubaidi Dismissed, no payment 16AllanService not effected until 1998 and the re- credentialing. Was done in 1997 17.DriessClosed. No payment

Footnote 3: This Court is well aware of the case of Raschel v. Rish, 110 AD2d 1067(4th Dept. 1985) which is distinguishable as a decision made on summary judgment which did not reveal whether the malpractice claims it recites went to judgment and which ostensibly was not dealing, as we are here, with the question of the impact of settlements or dispositions other than judgments upon the question of a doctor's competency.

Footnote 4:Plaintiff makes much of a so called stipulation made by defense counsel that allegedly closes this crucial gap. The import of this stipulation was hotly disputed by defense counsel and the record in that regard is far from crystal clear. This is particularly true in light of the fact that counsel for the defense merely responded to plaintiffs' counsel's statement. Accordingly, this Court does not find that the stipulation conveys what plaintiff's counsel would have it convey.