Matthews v St. Barnabas Hosp.

[*1] Matthews v St. Barnabas Hosp. 2006 NY Slip Op 52592(U) [15 Misc 3d 1134(A)] Decided on November 14, 2006 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2006
Supreme Court, Bronx County

Kashif Matthews, an infant under the age of fourteen years by his mother and natural guardian, Serena Matthews, and Serena Matthews, individually, Plaintiffs

against

St. Barnabas Hospital, Defendant



8573/2004



APPEARANCES:

For Plaintiffs

Tracya N. Smith Esq.

Druckman & Sinel, LLP

7 Penn Plaza, New York, NY 10001

For Defendant

William D. Buckley Esq.

Garbarini & Scher, P.C.

432 Park Av. South, New York, NY 10016

Lucy Billings, J.

I.BACKGROUND

Defendant moves for summary judgment dismissing the complaint on the grounds that plaintiffs have been compensated for their injuries claimed in this action, through satisfaction of a $431,250.00 judgment, plus interest, plaintiffs recovered in a prior action against initial tortfeasors liable for the same injuries. In the current action, plaintiff Kashif Matthews and his mother claim defendant's medical malpractice in negligently diagnosing and treating the fractures to the child's right foot after those initial defendant tortfeasors' vehicle struck the foot. As explained below, the court denies defendant's motion. C.P.L.R. § 3212(b).

II.UNDISPUTED FACTS

Plaintiffs do not raise any factual issue as to how the injuries claimed in this action differ from the injuries presented to and considered by the jury in the prior action. Matthews v. National Car Rental Inc., No. 02CV5061 (RMB) (S.D.NY Aug. 3, 2003). Nor do plaintiffs dispute that the defendants there have satisfied the judgment in plaintiffs' favor. Velazquez v. Water Taxi, 49 NY2d 762, 764 (1980); Blanco v. J&B Assocs., 177 AD2d 370, 371 (1st Dep't 1991); Ouziel v. Coyle, 165 AD2d 868, 869 (2d Dep't 1990). Plaintiffs did not and do not claim that the defendants there committed any medical malpractice. Nonetheless, the court in that action specifically instructed the jury, at plaintiffs' urging, that those defendants [*2]were liable not only for the fractures plaintiff Kashif Matthews sustained from the vehicle, but also for any aggravation of the fractures caused by medical care providers' negligence in treating or in failing to diagnose or treat his condition adequately. Thus the jury determined and awarded a verdict for the full extent of plaintiffs' injuries.

The original fractures caused by those initial tortfeasors, who acted neither in concert nor concurrently with defendant hospital here, may have been divisible from any aggravation of the fractures by the hospital. Yet plaintiffs elected in the prior action not to separate the original injuries from the compounding injuries plaintiffs claim the hospital physicians' diagnoses and treatment or misdiagnoses and mistreatment caused. Ravo v. Rogotnick, 70 NY2d 305, 313 (1987). See Velazquez v. Water Taxi, 49 NY2d at 765.

In sum, plaintiffs sought to and therefore did recover for the total, ultimate injuries to Kashif Matthews's right foot flowing from and remaining after the vehicle's impact and the consequent medical care provided for that trauma. Ravo v. Rogotnick, 70 NY2d at 310-11; Suria v. Shiffman, 67 NY2d 87, 98 (1986); Reilly v. Fullmer, 9 AD3d 818, 819-20 (3d Dep't 2004). That verdict against the original tortfeasors, the vehicle owner and driver, was reduced by 25%, however, due to Kashif Matthews's comparative negligence when he encountered the vehicle.

III.THE TORTFEASORS' RESPECTIVE LIABILITY AND PLAINTIFFS' ELECTION OF REMEDIES

Plaintiffs' judgment against the original tortfeasors does not automatically bar plaintiffs' claim against a subsequent tortfeasor. Hecht v. City of New York, 60 NY2d 57, 62 (1983); Gillespie v. Flight Line Pub, 2 AD3d 1014, 1015 (3d Dep't 2003); Pigliavento v. Tyler Equip. Corp., 233 AD2d 810, 811 (3d Dep't 1996); Napierski v. Finn, 229 AD2d 869, 871 (3d Dep't 1996). The current defendant hospital's negligence was not litigated in the prior action. Gillespie v. Flight Line Pub, 2 AD3d at 1015; Seaman v. Fichet-Bauche N. Am., 176 AD2d 793, 794 (2d Dep't 1991).

Although the hospital's liability for the medical care provided to Kashif Matthews is a separate issue and determination, there would no point in plaintiffs pursuing that issue if they already recovered for the injuries plaintiffs claim that medical care caused. Were they to establish the hospital's liability, however, the hospital would not be entitled to offset plaintiffs' recovery with a percentage of damages attributable to Kashif Matthews's comparative negligence. Where defendants seek to diminish plaintiffs' recovery based on their negligence, it must have played a part in causing or augmenting the harm those defendants inflicted. C.P.L.R. § 1411; Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 AD2d 891, 896 (1st Dep't 2003); Keeley v. Tracy, 301 AD2d 502, 503 (2d Dep't 2003); Gonzalez v. Jacoby & Meyers, 258 AD2d 560, 561 (2d Dep't 1999). See Adamy v. Ziriakus, 92 NY2d 396, 404-405 (1998); Raquet v. [*3]Braun, 90 NY2d 177, 183 (1997); Duenas v. North Harbor Co., 278 AD2d 193 (2d Dep't 2000); Comi v. Breslin & Breslin, 257 AD2d 754, 756 (3d Dep't 1999). Kashif Matthews's negligence in causing the vehicle to strike his foot, before he received any medical care from the hospital, is irrelevant to the hospital's liability for medical malpractice. DiMarco v. New York City Health & Hosps. Corp., 247 AD2d 574, 576 (2d Dep't 1998); Mendoza v. Kaplowitz, 215 AD2d 735, 736 (2d Dep't 1995). See Suria v. Shiffman, 67 NY2d at 97; DeCesare v. Kaminski, 29 AD3d 379, 381-82 (1st Dep't 2006); Elkins v. Ferencz, 263 AD2d 372, 373 (1st Dep't 1999); Bellas v. Kurpis, 182 AD2d 542, 543 (1st Dep't 1992).

The hospital would, however, be entitled to limit its liability to the injuries it caused, after the original fractures and related injuries the original tortfeasors' vehicle caused. If the hospital negligently contributed to Kashif Matthews's injuries, in committing the independent wrong, the medical malpractice, the hospital is a successive, rather than joint or concurrent, tortfeasor. Suria v. Shiffman, 67 NY2d at 98; Hill v. St. Clare's Hosp., 67 NY2d 72, 82 (1986); Roebuck v. Duprey, 274 AD2d 620, 621 (3d Dep't 2000). While the original tortfeasors were liable for all the proximate results of their own negligence, including aggravation of injuries by the hospital, it is liable for only that aggravation caused by the hospital's own conduct. Ravo v. Rogotnick, 70 NY2d at 310; Suria v. Shiffman, 67 NY2d at 98; Hill v. St. Clare's Hosp., 67 NY2d at 82; Mavashev v. New York City Tr. Auth., 300 AD2d 552, 553 (1st Dep't 2002). The hospital bears no liability for Kashif Matthews's condition before the child arrived at the hospital. Rogovin v. Wasserman, 18 AD3d 400, 401 (1st Dep't 2005). Its liability thus is limited to the proportionate share of damages attributable to the additional injuries incurred as a proximate result of the hospital's negligent care and its aggravating effect. Suria v. Shiffman, 67 NY2d at 98-99; Rogovin v. Wasserman, 18 AD3d 400; Mendoza v. Kaplowitz, 215 AD2d at 735-36. See Hill v. St. Clare's Hosp., 67 NY2d at 85-86.

Plaintiffs, on the other hand, may not recover in this action for the same aggravation of injuries for which they recovered from the original tortfeasors in the federal action. Id. at 83, 86; Mavashev v. New York City Tr. Auth., 300 AD2d at 554; Lanzano v. City of New York, 202 AD2d 378, 379-80 (1st Dep't 1994). Nor may plaintiffs claim their damages from the aggravated injuries are greater than the past and future damages awarded in the federal action. Id. at 380.

In that prior action, plaintiffs elected to recover the full extent of their damages, not just the damages initially caused by only the defendant vehicle owner and driver, separately from the damages caused by the ensuing medical care. 331 E. 14th St. LLC v. 331 E. Corp., 293 AD2d 361 (1st Dep't 2002). See Cohen v. New York City Health & Hosps. Corp., 293 AD2d 702, 703-704 (2d Dep't 2002); Roebuck v. Duprey, 274 AD2d at 621-22. In reliance on that election, plaintiffs gained the advantage of recovering the [*4]maximum extent possible in that action. 331 E. 14th St. LLC v. 331 E. Corp., 293 AD2d 361.

Judicial estoppel precludes plaintiffs from now making claims inconsistent with the position plaintiffs successfully maintained in the prior action. Sancham Realty Corp. v. Taub, 292 AD2d 304, 305 (1st Dep't 2002); Lanzano v. City of New York, 202 AD2d at 380; Bergstol v. Town of Monroe, 305 AD2d 348, 349 (2d Dep't 2003); Secured Equities Invs. v. McFarland, 300 AD2d 1137, 1138-39 (4th Dep't 2002). Even though plaintiffs pursue a different theory of liability against a different defendant in the current action, the damages claimed in the prior action encompassed the damages claimed here, and plaintiffs had a full and fair opportunity to prove the full extent of their damages in that prior action. Lanzano v. City of New York, 202 AD2d at 379; Bell v. New York State Dormitory Auth., 183 AD2d 530, 531 (1st Dep't 1992); Blanco v. J&B Assocs., 177 AD2d at 371; Spasiano v. Provident Mut. Life Ins. Co., 2 AD3d 1466, 1468 (4th Dep't 2003). See Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349-50 (1999); Sun Mei Inc. v. Chen, 21 AD3d 265, 266 (1st Dep't 2005); BDO Seidman, LLP v. Greenblatt, 17 AD3d 209 (1st Dep't 2005); Laing v. Cantor, 1 AD3d 406, 407 (2d Dep't 2003). Plaintiffs, having maintained there that they were entitled to recover, and having recovered, for both the original injuries from the vehicle's impact and for the aggravated injuries from the consequent medical care, without separating them, now are estopped from maintaining in this action that the aggravation caused further injuries not previously claimed. Lanzano v. City of New York, 202 AD2d at 379; Bergstol v. Town of Monroe, 305 AD2d at 349; Moore v. County of Clinton, 219 AD2d 131, 134-35 (3d Dep't 1996). To assume such a position now would be contrary to the position plaintiffs successfully maintained so as to recover the maximum amount in the federal action. 331 E. 14th St. LLC v. 331 E. Corp., 293 AD2d 361; Lanzano v. City of New York, 202 AD2d at 380; Blanco v. J&B Assocs., 177 AD2d at 371; Bergstol v. Town of Monroe, 305 AD2d at 349. See Gillespie v. Flight Line Pub, 2 AD3d at 1015; Shapiro v. Butler, 273 AD2d 657, 659 (3d Dep't 2000).

IV.THE DAMAGES REMAINING TO BE TRIED

In the prior action, the verdict against the vehicle owner and driver was reduced by 25% due to Kashif Matthews's comparative negligence. Had plaintiffs also sued the hospital there, and had the jury found that the hospital's negligence contributed to plaintiffs' injuries and apportioned its liability based on that contribution, the total verdict for the full extent of plaintiffs' injuries would have been the same: $575,000.00, without interest. The vehicle owner and driver would have been liable for the full extent of the injuries the vehicle caused, but reduced by the 25%, yielding the 75% plus interest plaintiffs have collected.

The hospital would have been liable for all or a portion of the full verdict, depending on whether the injuries were divisible. Ravo v. Rogotnick, 70 NY2d at 310, 312; Reilly v. [*5]Fullmer, 9 AD3d at 819-20; Said v. Assad, 289 AD2d 924, 926, 928 (4th Dep't 2001); Roebuck v. Duprey, 274 AD2d at 621-22. Even though the parties here do not dispute that any negligence by the hospital ensued only as a direct result of the original injuries to which the patient contributed, Said v. Assad, 289 AD2d at 925; Roebuck v. Duprey, 274 AD2d at 621, any portion attributable to the hospital remains undiminished by the 25% for the comparative negligence in causing the injuries from the vehicle. DiMarco v. New York City Health & Hosps. Corp., 247 AD2d at 576; Mendoza v. Kaplowitz, 215 AD2d at 736. Once the vehicle owner and driver paid the 75% of $575,000.00 in damages, however, plaintiffs may collect against the hospital only if its liability extends beyond that amount: $431,250.00.

Similarly, had plaintiffs sued only the hospital in the first instance, conceivably, had the jury found the hospital liable for most or all of plaintiffs' total injuries, plaintiffs would have recovered more than they did against the original tortfeasors. Plaintiffs, having elected their remedy and received a total verdict of $575,000.00 for all their damages, are barred now from recovering more than the $575,000.00 total. Bell v. New York State Dormitory Auth., 183 AD2d at 531; Blanco v. J&B Assocs., 177 AD2d at 371. Nonetheless, because it was reduced due to comparative negligence that does not apply against defendant here, plaintiffs still may recover all or part of that $143,250.00 reduction from the hospital, if a jury now finds the hospital liable for more than $431,250.00 in damages.

Thus plaintiffs, to recover anything further at trial, will bear the burden to prove that the original injuries' aggravation caused by the hospital's negligence was so extensive as to constitute more than $431,250.00 of plaintiffs' total damages: that but for the hospital's negligence, Kashif Matthews would have made a speedy, full recovery, for example. Defendant, however, bears the burden in support of defendant's summary judgment motion to defeat such a claim based on undisputed facts. Yet nowhere does defendant establish through any evidence either that the hospital was not negligent or that the original injuries' aggravation caused by hospital's negligence was so minimal it conclusively contributed to less than 75% of plaintiffs' total injuries. In fact, defendant insists Kashif Matthews's injuries are indivisible. If so, and plaintiffs prove defendant's negligence in contributing to those injuries, defendant, albeit a successive tortfeasor, would be jointly and severally liable for the full extent of plaintiff's damages: $575,00.00, reduced by the $431,250.00 recovered from the original tortfeasors, but not further reduced by the 25% applicable only to them. Ravo v. Rogotnick, 70 NY2d at 310, 312; Reilly v. Fullmer, 9 AD3d at 819-20; Said v. Assad, 289 AD2d at 929-30; Roebuck v. Duprey, 274 AD2d at 621.

The only exception permitting a greater recovery would be proof that Kashif Matthews suffered an injury that is specifically attributable to defendant's negligence and only has been revealed since that prior trial. Such an injury, which is [*6]neither claimed by plaintiffs nor indicated by the evidence in opposition to summary judgment, is not simply an element of his future damages that now has manifested itself, but was included in the prior jury's assessment of future damages. Again, however, since defendant has not shown, through medical evidence supporting summary judgment, that he has suffered no such injury, that lone issue, if susceptible of proof, is not definitively foreclosed.

Although plaintiffs insist that, even without such evidence, a jury in this action may determine whether the $575,000.00 total award constituted compensation for all plaintiffs' injuries and whether it was adequate, a jury here would make that determination only if plaintiffs' prior recovery were through a settlement with the original tortfeasors. NY Gen. Oblig. Law § 15-108(a). E.g., Hill v. St. Clare's Hosp., 67 NY2d at 84, 86; Napierski v. Finn, 229 AD2d at 871. See Whalen v. Kawasaki Motors Corp., 92 NY2d 288, 292 (1998); Kassis v. Teachers Ins. & Annuity Assn., 13 AD3d 165, 166 (1st Dep't 2004). Here, at plaintiffs' urging, the prior jury made that determination, which now is binding. Lanzano v. City of New York, 202 AD2d at 379-80; Bell v. New York State Dormitory Auth., 183 AD2d at 531; Blanco v. J&B Assocs., 177 AD2d at 371; Moore v. County of Clinton, 219 AD2d at 134-35.

V.CONCLUSION

Absent the requisite showing by defendant hospital supporting its motion, the evidence raises conceivable facts upon which plaintiffs still may prove at trial that defendant is liable for more than $431,250.00 of plaintiffs' damages from Kashif Matthews's injuries. If plaintiffs prevail with such proof, they may recover damages up to $575,00.00, reduced by $431,250.00: a maximum of $143,750.00. Plaintiffs' recovery may exceed that amount only if they establish the single exception delineated above. For these reasons, the court denies defendant's motion for summary judgment. C.P.L.R. § 3212(b).

DATED: November 14, 2006

_____________________________

LUCY BILLINGS, J.S.C.