Thompson v Butts

[*1] Thompson v Butts 2016 NY Slip Op 50991(U) Decided on July 5, 2016 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2016
Supreme Court, Kings County

Bobby Thompson and SAIDA RIOS, Plaintiffs,

against

Sydney Butts, M.D. and LONG ISLAND COLLEGE HOSPITAL, Defendants.



1835/2012



Attorney for plaintiff:

Stein Schwartz Chesir & Rosh, LLP

845 Third Avenue — 11th Floor

New York, NY 10022

212-697-7220

Attorneys for Defendants:

Aaronson Rappaport Feinstein & Deutsch, LLP

600 Third Avenue

New York, NY 10016

212-593-6700
Marsha L. Steinhardt, J.

The following papers numbered 1 to 4 read herein:Papers Numbered

Notice of Motion _______________________________________1

Cross Motion___________________________________________2

Affirmation in Opposition_________________________________3

Reply_________________________________________________4

Defendant Long Island College Hospital (LICH) moves for an Order confirming the Decision and Award of Hon. John DiBlasi dated January 16, 2016 arising from an arbitration proceeding held on January 14, 2016. Plaintiff cross-moves for an Order vacating said Decision and Award based upon a claim that the arbitrator failed to address the key allegation against LICH. In his Reply papers, plaintiff additionally claims that defendant failed to exchange its "Position Papers" prior to the hearing. He claims this exparte submission prejudiced the plaintiff in the arbitration proceeding and amounted to the appearance of impropriety and misconduct on the part of the arbitrator.

This is an action sounding in medical malpractice wherein plaintiff claims that LICH failed to interpret x-ray films taken of his mandible on August 20, 2010. Plaintiff had sustained a fracture of the jaw which was reduced and surgically repaired with hardware by defendant Dr. Butts, an attending physician at LICH, on August 5, 2010. Subsequent to the surgery, plaintiff returned to LICH on August 19th and x-rays were taken on August 20th. Plaintiff claims that films of August 20th showed that the hardware was pulling away from the bone, causing an infection to develop. He claims that the LICH medical personnel did not read the films and that they failed to generate a report.

As a result of this litigation, the parties engaged in mediation and thereafter had an arbitration hearing on January 14, 2016. Along with a letter dated January 7, 2016, plaintiff submitted papers to the arbitrator, serving same on the defendants. Included in plaintiff's submission were a memorandum setting forth his position, the affidavit of expert Lloyd K. Klausner, D.M.D., medical documents, amended Bill of Particulars responsive to LICH's demands, a medical report by Elliott Ostro, D.M.D and x-rays. In the memorandum, plaintiff clearly stated that he was making a direct claim against LICH for its own negligence in having failed to review the films and having failed to generate an x-ray report. It is noted that plaintiff settled the action against defendant Dr. Butts prior to the arbitration.

A review of the expert opinions plaintiff submitted to the arbitrator reveals that one expert opines that Dr. Butts' alleged departures proximately caused plaintiff's injuries while the other expert only focuses on LICH's liability and proximate cause. Specifically, the report of plaintiff's expert, Dr. Klausner, is critical of the treatment rendered by Dr. Butts yet fails to address the issue of LICH's liability. The report states that Dr. Butts, as plaintiff's surgeon, failed to recognize that the inferior border plate was improperly adapted to the mandible angle fracture and was not in intimate contact with the bone. The report concludes that the physician failed to take proper, timely medical precaution thereby resulting in infection. Although plaintiff argues that expert opinion referable to LICH's liability is found in paragraph 18 of Dr. Klausner's affidavit, this paragraph merely addresses the liability of Dr. Butts. Indeed, the expert opines that "(p)lacing a screw in the fracture line, was, in my opinion, based upon a reasonable degree of medical certainty, a deviation from accepted medical and surgical practice, proximately causing the loosening of the hardware and infection, necessitating the hardware removal and requiring plaintiff to undergo further surgery on August 27, 2010 In short, if the screws loosen before the bones heal, the bone will move and the screws begin to represent more of a foreign body [*2]contributing to the onset of infections .Defendant, as Plaintiff's surgeon, obviously failed to recognize the foregoing in the August 20, 2010 x-ray and as a result thereof failed to take appropriate, timely, and medical precaution as set forth above Such failures by Defendant constituted deviations from acceptable practice and were the proximate cause of the infections above suffered by Plaintiff and which caused the slow healing process and required the further surgery of August 27, 2010." In sum, nowhere in the expert's report is there an opinion as to LICH's liability.

In contrast, the report of a physical performed by Dr. Ostro focuses solely on LICH's liability. The report states "LICH was grossly negligent in having taken an x-ray on August 20, 2010 of the fractured jaw bones including the metal plate, and then failing to read or interpret the x-ray films." Dr. Ostro notes that he examined the plaintiff and reviewed the LICH records and films of August 20, 2010. He states that had the films been read, it would have been evident that the metal plates were no longer attached to the bones. He adds that antibiotic therapy should have and would have been immediately given a proper reading of the films and in light of the August 19, 2010 clinical findings of swelling and pain to the right jaw area.

Defendant LICH submitted its "Position Papers" to the arbitrator dated January 12, 2016. It is uncontroverted that defendant did not send a copy to the plaintiff. Defendant LICH's papers to the Arbitrator noted that the patient underwent three x-rays of the mandible at LICH on August 20th, 2010. LICH states that their records do not reveal that a report was drafted for these x-rays. Defendant's papers include an analysis of liability concluding that LICH bears no liability in this matter. LICH states that plaintiff was Dr. Butts' patient and that she performed all three surgeries on plaintiff's jaw and was responsible for follow up care. Defendant further states that Dr. Butts testified at her deposition that the film of August 20th looked similar to the x-rays taken immediately after the surgery in that all screws and plates were in place with stable reduction. LICH claims that Dr. Butts testified that she would not have done anything differently had she read the films of August 20, 2010. A copy of the deposition transcript of Dr. Butts was submitted by the plaintiff to the arbitrator. (See Plaintiff's exhibit G of the Memorandum submitted to the Arbitrator). Defendant stresses in its submissions that LICH bears no liability in this case and argues that plaintiff was under the care of Dr. Butts who was responsible for his care and treatment.

A hearing was held before the Hon. DiBlasi on January 14, 2016. Neither party submitted minutes or a transcript of the hearing. Presumably plaintiff went forward with the hearing not having received papers from the defendant. The Decision of the Hon. DiBlasi states:

This action arises out of the treatment of the plaintiff by a co-defendant, Dr. Butts, at Long Island College Hospital (LICH). Plaintiff sustained injuries as result of an assault which resulted in multiple fractures to his jaw. Plaintiff underwent a first open reduction internal fixation to repair his jaw. In essence the plaintiff's claim of malpractice center around this doctor's treatment subsequent to the first surgery which resulted in plaintiff's jaw becoming infected. This infection led to a second surgery and multiple residual injuries that plaintiff is claiming.

Without commenting on the validity of the alleged departures from accepted medical practice there is no basis for any recovery as against LICH. Whether a person is an independent contractor or employee is a question of fact. Evidence may come from "the contact itself, the attitude of the parties toward each other, the nature of the work, and all relevant circumstances" [*3](See Nobel v Ambrosio, 120 AD2d 715, Second Department, 1986). While there was a statement in the deposition of Dr. Butts that she was employed by LICH she was never paid by LICH and did not receive any other benefits from them. It is clear from the evidence presented that the entirety or plaintiff's medical care was provided, managed and supervised by the co-defendant Dr. Butts individually and not as an employee of the hospital. Any treatment rendered to the plaintiff that may have resulted in his injuries took place long after plaintiff's initial emergency room visit. There is no basis for vicarious liability against LICH and accordingly plaintiff's action must be dismissed.

In addition to the arguments addressed later in this decision, plaintiff seeks to vacate the Arbitrator's decision claiming that the he did not address plaintiff's claim that the x-rays taken of August 20, 2010 were not read or interpreted by the LICH personnel. He claims that the Decision lacks any evidentiary support and is arbitrary and capricious.

The Court of Appeals consistently holds that "judicial review of arbitration awards is extremely limited." Wien & Malkin LLP v. Helmsley—Spear, Inc., 6 NY3d 471, 479 (2006); Sheriff Officers Ass'n, Inc., ex rel. Ranieri v. Nassau County Supreme Court, 113 AD3d 620 (2d Dept. 2014). "A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence." David v. Byron, 130 AD3d 772, 773 (2d Dept. 2015) quoting, Matter of Denaro v. Cruz, 115 AD3d 742, 742—743 (2d Dept. 2014); Matter of Government Empls. Ins. Co. v. Schussheim, 122 AD3d 849, 849—850 (2d Dept. 2014); Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d 1094, 1096 (2d Dept.2011), cert denied 133 S Ct 572 (2012).

"An arbitrator's paramount responsibility is to reach an equitable result, and the courts will not assume the role of overseers to mold the award to conform to their sense of justice. Thus, an arbitrator's award will not be vacated for errors of law and fact committed by the arbitrator (internal citations omitted) and even where the arbitrator states an intention to apply a law, and then misapplies it, the award will not be set aside (internal citations omitted)." Sprinzen v. Nomberg, 46 NY2d 623, 629-630 (1979). It is also well established that an arbitrator is not required to justify his award; it must merely be evident that there exists a rational basis for it upon a reading of the record. Dahan v. Luchs, 92 AD2d 537 (2d Dept.1983) quoting, Caso v. Coffey, 41 NY2d 153, 158 (1976); Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 443 (2d Dept.1980). "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.'" Wien & Malkin LLP v. Helmsley—Spear, Inc., at 479. Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision. In re Falzone (New York Cent. Mut. Fire Ins. Co.), 15 NY3d 530 (2010). "A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." Wien & Malkin LLP v. Helmsley—Spear, Inc, at 480. "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be (internal citations omitted)." Matter of Susan D. Settenbrino, P.C. v Barroga-HayesSupreme, at 1095 .

In this instance, it is apparent from the submissions of both sides that plaintiff claims that LICH failed to review the films of August 20, 2010 and generate a report; this claim is for LICH's direct liability, not for vicarious liability for the acts of Dr. Butts. Plaintiff clearly argues this claim in his submissions to the arbitrator just as defendant counters the claim in its papers. [*4]As noted previously, plaintiff's examining physician opined that LICH deviated from the standard of care by not reviewing and generating a report and that this departure proximately caused the allegedly existing infection to remain untreated. It is also glaring in his documentation that the other expert opined that the departure was on the part of Dr. Butts, without any mention of LICH's blame.

Considering the submissions and arguments of both sides and based upon the above cited holdings by the Court of Appeals and the Second Department, this court finds that the there is a colorable basis for the Hon. DiBlasi's Decision and Award in which he states, inter alia, that "there is no basis for any recovery as against LICH." Unless the award is completely irrational, the arbitrator is free to fashion the applicable rules and determine the facts of a dispute without the award being subject to judicial revision. Lentine v Fundaro, 29 NY2d 382 (1972); T & C Home Design, LLC v. Stylecraft Corp.. 30 NYS3d 886, 2016 WL 3064860 (Mem)2016 NY, Slip Op. 04228 (June 1, 2016). Furthermore, the fact that the decision does not specifically address plaintiff's claim does not warrant its vacatur. The arbitrator may render as lengthy or as succinct a decision as he or she sees fit as it is well established that an arbitrator need not address every claim in the case or review every detail of evidence. A.M. Perlman, Inc. v. Raycrest Mills, Inc. 280 A.D. 744 (1st Dept. 1952) motion denied 305 NY 715, affirmed 305 NY 803.

Next, plaintiff claims that defendant's papers, which were not served on plaintiff, amount to a private conversation. Plaintiff claims that the first time he learned that defendant had submitted papers to the arbitrator was when these were annexed as an exhibit to defendant's opposition to the cross-motion herein. He argues that this serves as a basis to vacate the decision as prejudicial, claiming it is an indication of bias. CPLR 7511(b)(1)(i) provides that an award may be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award. For a decision to be vacated, plaintiff must show by clear and convincing evidence that the arbitrator was corrupted or prejudiced by fraud or misconduct in procuring the award. Matter of James A. Smith Contr. v. Stahl, 162 AD2d 688 (2nd Dept. 1990); Hausknecht v. Comprehensive Medical Care of New York, P.C., 24 AD3d 778 (2d Dept. 2005). The burden of proving that the arbitrators' denial of the request constituted misconduct rests with respondent and must be met by clear and convincing proof that he was deprived of an opportunity to present his case. Government Employees Ins. Co. v. Schussheim, 122 AD3d 849 (2d Dept. 2014). An arbitrator's partiality may be established by an actual bias or the appearance of bias from which a conflict of interest may be inferred. Matter of Denaro v. Cruz, 115 AD3d 742, 743 (2d Dept. 2014).

While some communications between a party and arbitrator constitute misconduct impairing the integrity of the arbitration process, the particular facts and circumstances of each case must be examined to reach an appropriate determination. Matter of Goldfinger v. Lisker, 68 NY2d 225, 232 (1986); Montague Pipeline Technologies Corp. v. Grace-Lansing & Grace Industries, Inc., 238 AD2d 510 (2d Dept.1997). In Goldfinger, supra, one of the arbitrators engaged in private conversation with a party to "to force Mr. Goldfinger to break down and change his story", and "to break Goldfinger down from his original claim." In that case, the Court of Appeals held that the communications amounted to misconduct that prejudiced the other party's right and created the appearance of impropriety if not actual partiality.

In Denaro v. Cruz, supra, the petitioner failed to establish that it was improper for the arbitrator to commence the hearing in his absence and the Second Department held that the [*5]petitioner's allegations regarding improprieties at the hearing after he arrived were without merit. In David v. Byron, 130 AD3d 772 (2d Dept. 2015), one party submitted a letter to the arbitrator that was written by the mediator detailing the sessions which he had supervised. The Second Department acknowledged that the letter was submitted to the arbitrator and that the mediator and the arbitrator were former Supreme Court Justices and held that there was not clear and convincing evidence of actual bias or the appearance of bias. In Government Employees Ins. Co. v. Schussheim, supra, the Second Department held that appellant's claim of bias was speculative and affirmed the lower court's decision to confirm the arbitration award. In that case, appellant argued that the arbitrator had ex parte communications with opposing counsel about the case while they waited for the appellant in the hearing room who was more than a half hour late to the hearing.

Here, plaintiff has failed to meet his burden of demonstrating by clear and convincing evidence that any impropriety on the part of the arbitrator prejudiced his rights or the integrity of the arbitration process. Nothing in the record indicates that the award was in any way the result of improper influence or bias. Although it would have been better practice for defendant to serve its submissions on the plaintiff before the hearing, there was nothing in the papers that is prejudicial material. Defendant's papers result in nothing more than promoting the interests of defendant LICH just as plaintiff's submissions serve in advancing the interests of his client. Moreover, both parties were present at the hearing and would have had an opportunity to dispel any inconsistencies or misstatements proposed by each side.

Accordingly the Decision and Award of the Hon. DiBlasi dated January 16, 2016 is hereby confirmed. The motion of the defendant is Granted and plaintiff's Cross motion is Denied.

This constitutes the opinion, decision and order of this court.

ENTER,

HON. MARSHA L. STEINHARDT

J.S.C.