Doe v Sharma
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Doe v Sharma 2018 NY Slip Op 32951(U) October 1, 2018 Supreme Court, Nassau County Docket Number: 1324/14 Judge: Jeffrey S. Brown Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT : HON. JEFFREY S. BROWN JUSTICE ------------------------------------------~-------------------------~----}( "JANE DOE" Plaintiff, -againstMOHAN SHARMA, M.D., IDTA SHARMA, M.D., CARING MEDICAL, LLC and SUKHDATA, LLC, TRIAI.,/IAS PART 12 Mot. Seq. 8 9 Mot. Date .13.18 Submit Dat 8.13.18 Defendants. ---------------------------------------------------------------------------}( The following papers were read on this motion: Doc Notice of Motion, Affidavits (Affirmations), Exhibits Annexed.......................... Answering Affidavit .. ..... .... ........... .. .... ............. ... ........................... .. ..... .. ...... ... .... Reply Affidavit...................................................................................................... ents Numbered 1, 2 3 4 ===========================-==-==-==-=-==-==-==::F========== This motion by the defendants Mohan Sharma, M.D. and Caring Medic , LLC (defendants) for an order pursuant to CPLR 4404 (a) setting aside the jury verdi tin this case or, in the alternative, an order setting aside the damages awarded to the plaintiffs is etermined as 130-1.1 (a) provided herein. Cross-motion by the plaintiff for an order pursuant to 22 NYC sanctioning the defendants for frivolous conduct and holding them liable for the costs incurred by the plaintiff in opposing this motion is determined as provided herein. In this highly unusual case, the plaintiff has advanced five causes of acti n: negligent retention and supervision of the defendant Mohan Sharma; assault, battery and ndangerment; intentional; negligent infliction of emotional distress; professional negligence d malpractice. This action was tried before a jury for seven days. The jury found the defendan and his practice, defendant Caring Medical, LLC, liable. The jury found (1) that the defendant ohan Sharma departed from "the accepted standards of medical practice by practicing medic· e while impaired by a cognitive disability;" (2) that his departure was a substantial factor in bring ng about the plaintiffs injuries; (3) that Caring Medical, LLC was negligent in permitting th defendant to -1- [* 2] practice medicine while impaired by a cognitive disability; and (4) that Caring edical's negligence was also a substantial factor in bringing about the plaintiff's injuries. Mohan Sharma was found 70% at fault and Caring Medical was found 30% at fault. The plainti was awarded $700,000 for past pain and suffering and $300,000 for future pain and suffering or the upcoming ten years. Mohan Sharma and Caring Medical, LLC, presently ask this court to et aside the jury's findings as against the weight of the evidence. The plaintiffs claims arose from an incident occurring while the plaintif was in defendant Mohan Sharma' s medical office along with her grandmother to receiv certain test results. It is undisputed that during this visit the defendant Mohan Sharma took is penis out of his pants, masturbated and ejaculated on the plaintiff Jane Doe. The plaintiff, w o suffers from intellectual disabilities, testified in sum that she and her grandmother had gone t the defendant's office for a scheduled appointment on the day in question to obtain the results o urinary and blood tests and to have a bug bite on her grandmother's arm examined. They w re both brought into the examining room, which was a usual practice for them when they saw th defendant. The defendant had the plaintiffs grandmother sit on the examination table facing th wall while he examined her back with a stethoscope. The plaintiff testified that he then appro ched her and stuck out his tongue and then "started unzipping his pants and took his penis ou ." She testified that "he was trying to make [her] force of touching him and doing disgusting thi gs to [her] and he eventually 'semened' on [her] pants and on the floor." She further testified t she was able to take a video of his actions by pressing "record" on her phone. That video w shown to the jury. It shows the defendant exposing his penis, masturbating in front of the pl intiff, gesturing to her to touch his penis and to put her mouth on it. The defendant Mohan Sharma maintains that the jury's finding that he eparted from accepted medical standards with respect to his treatment of the plaintiff must be set aside because his conduct did not constitute "medical treatment" as it was not related to a "cru ial element of diagnosis and treatment." In addition, the movant maintains that the damages arded were excessive in view of the evidence as well as in light of verdicts awarded for co parable events. "A motion for judgment as a matter of law pursuant to CPLR 4404(a) m y be granted 'only when the trial court determines that, upon the evidence presented, there is o valid line of reasoning and permissible inferences which could possibly lead rational person to the conclusion reached by the jury upon the evidence presented at trial, and no ratio al process by which the jury could find in favor of the nonmoving party'" (Previtera v Nath, AD3d_, 2018 WL 3999481 [2d Dept 2018], quoting Tapia v Dattco, Inc., 32 AD3d 842, 844 d Dept 2006], citing Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Gaspardv Aronoff, 153 AD3d 795, 796 [2d Dept 2017]). "[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 interpret ti on of the evidence" (Vittiglio v Gaurino, 100 AD3d 987, 988 [2d Dept 2012], citing Loli v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro v Park, 113 AD2d 129, 130 [2d Dept 1985]). Indeed, "[a] motion pursuant to CPLR 4404(a) to set aside a verdict an for a new trial in the interest of justice encompasses errors in the trial court's rulings on the a issibility of -2- [* 3] evidence, mistakes in the charge, misconduct, newly discovered evidence, and s rise" (Allen v Uh, 82AD3d1025, 1025 [2d Dept2011], citing Matter of De Lano, 34 AD2d 1 31, 1032 [3d Dept 1970], affd 28 NY2d 587 [1971]; Rodriguez v City ofNew York, 67 AD3d 84, 885 [2d Dept 2009]; Gomez v Park Donuts, 249 AD2d 266, 267 [2d Dept 1998]). "The rial court must decide whether substantial justice has been done, and must look to common sen e, experience, and sense of fairness in arriving at a decision" (Allen v Uh, 82 AD3d at 1025, ci "ng Micallefv Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]; Bush v Jnte national Bus. Machs. Corp., 231AD2d465 [lst Dept 1996]). It is settled that "[t]o establish a prima facie case ofliability in a medical malpractice action, a plaintiff must prove (1) that the defendant deviated from accepted stan ards of medical practice and (2) that such deviation proximately caused the plaintiffs injuries" ( revitera v Nath, _AD3d at_, 2018 WL 3999481, citing Gaspard v Aronoff, 153 AD3d at 796; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006 [2d Dept 201 O]). "In s case, the plaintiff sought to recover damages for medical malpractice and, thus, was requi ed to prove that the defendant's deviation from good and accepted medical practice proximately aused her injuries" (Dupree v Giugliano, 87 AD3d 975, 976 [2d Dept 2011], aff d as mod 20 NY3d 921 [2012], citing Alvarez v Gerberg, 83 AD3d 974, 975 [2d Dept 2011]; Stukas v treiter, 83 AD3d 1~, 23 [2d Dept 2011]; Myers v Ferrara, 56 AD3d 78, 83 [2d Dept 2008])."' e distinction between ordinary negligence and malpractice turns on whether the acts or omiss ons complained of involve a matter of medical science or art requiring special skills not ordinari y possessed by lay persons or whether the conduct complained of can instead be assessed on th basis of the common everyday experience of the trier of the facts'" (Fragosa v Haider, 17 D3d 526, 526-27 [2d Dept 2005], citing Smith v Pasquarella, 201 AD2d 782, 783 [3d 19 4], quoting Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [3d Dept 1983]; cf. Evang lista v Zolan, 247 AD2d 508, 509-510 [2d Dept 1998]). Generally, "an alleged negligent act constitutes medical malpractice wh n it can be characterized as a 'crucial element of diagnosis and treatment' and 'an integral art of the process ofrendering medical treatment to [the plaintiff]'" (Spiegel v Goldfarb, 6 AD3d 873, 874 [2d Dept 2009], quoting Bleiler v Bodnar, 65 NY2d at 72; see also, Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [ 1996] [the "inquiry" in a medical malpractice action involves "an analysis of the medical treatment furnished"]). However, a physician's conduct can be malpractice "where [it] constitutes medical treatment or bears a substantial rela ·onship to the rendition of medical treatment" (Gross v Kurk, 224 AD2d 582, 582 [2d Dept I 96]; see also, IB NY PJl3d 2: 150 at 49 [2018]; Scott v Uljanov, 74 NY2d 673 [1989] ["[M]edic malpractice is simply a form of negligence, no rigid analytical line separates the two ... ."];Bl iler v Bodnar, 65 NY2d 65, 72 [1985]; Bazakos v Lewis, 12 NY3d 631, 634 [2009]). Signific tly, "[i]n distinguishing whether conduct may be deemed malpractice or negligence, the ritical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have reached (see Pacio v Franklin Hosp., 63 AD3d 1130 [2009]; Ryan v Korn, 57 AD3d 507, 50 [2008]; Caso v St. Francis Hosp., 34 AD3d 714 (2006])." (Spiegel v. Goldfarb, 66 A.D.3d 87 , 874 [2d Dept 2009]). -3- [* 4] The defendants' failure to submit a copy of the entire transcript or the ex ibits from the trial does not "preclude a meaningful review"ofthis application (McPherson v ity of New York, 122 AD3d 809, 810 [2d Dept 2014]; cf. Gorbea v Decohen, 118 AD3d 548, 549 [1st Dept 2014] [quotations and citations omitted]). The crux of the defendant's motion is that the plaintiffs testimony, whic has been provided, establishes that the defendant's conduct when he assaulted her was no "a 'crucial element of diagnosis and treatment' or 'an integral part of the process of renderi g medical treatment to [her]'" (Spiegel v Goldfarb, 66 AD3d at 874 [quotations and citati ns omitted]) and thus, cannot constitute malpractice. In particular, the plaintiff testified as follows: "October 11, 2013, I remember going to see Mohan. My nanny-we had to go for a urinary and blood test for the results. And my nanny had a bug bite on her arm and we were in the room. So he called us in. He called us in the room d he said to have my nanny sit down on the bed and I said "Like on the side?" An he had her face the wall, to check her back with the thing .... The heart stethosco e. And he was-had her face the wall, he would go to me and give me like tongu out like this and he started unzipping his pants and took his penis out." When asked ifhe did anything else, she testified "[h]e was trying tom me forced of touching him and doing disgusting things to me and he, eventually he 'semened on my pants and on the floor." Defendants' argument conflates the question that was posed to the jury i with the more prevalent circumstance where a physician intentionally sexually uses a patient. In the majority of such cases, the acts of the physician have been found to const tute an intentional tort outside of the treatment of the patient, rather than malpractice. ( upree v Giugliano, 87 AD3d at 977 [there is a "generally unobjectionable proposition at a doctor's sexual relationship with his or her patient is not malpractice unless the sexual r ationship was part of, or related to, treatment"]; (De La Cruz v Nour, 134 AD3d 883, 884 [2d ept 2015] [sexual assault of patient's mother during office visit was an intentional tort wit a one year statute of limitations]; Fragosa v Haider, 17 AD3d at 527; Trott v Merit Dept. tore, 106 AD2d 158, 160 [1st Dept 1985]). The parties did not dispute that due to an aggressive form of frontal tern oral dementia, the defendant Mohan Sharma was incapable of forming intent at the time of the sexual abuse. A stipulation was read to the jury consisting of the following: the defendant "was ested for the acts committed against [the plaintiff] on October 11, 2013 and criminally charg d with endangering the welfare of an incompetent or physically disabled person in the ust degree in violation of Penal Law§ 260.25, a Class E felony, and sexual abuse in the seco d degree, in violation of Penal Law§ 130.60, a class A misdemeanor...." The stipulation dvised the jury -4- [* 5] that those charges were dismissed because the defendant himself was determine to be an "incapacitated person." The stipulation also included a statement that "[t]he act committed against the [plaintiff] by [the defendant] were not intentional but rather were inv luntary acts caused by complex partial seizures accompanied by masturbatory automatic beh viors resulting from his cognitive disorders." The jury also heard testimony that the defendant had exposed himself to employee in January 2013, eight months before the subject incident, and the stipulation con ·ned the January victim's sworn statement that "Dr. Sharma pulled his penis out of his pants and rabbed my hand and tried to make me touch it" and noted that those contentions were never adju icated because of the defendant's incapacity. The jury was further advised via the stipulation at on February 26, 2013 Mohan Sharma stated that he engaged in other instances of conduct si ilar to his misconduct in January 2013. The defendant's expert acknowledged that he was impaired by a cogniti e disorder that was progressive and degenerative at the time of the plaintiff's assault and that ·s disability was severe. In fact, he testified that the defendant was in the throes of a major cognit ve event when the abuse occurred. The question ultimately presented by this case, and the question posed t the jury was whether Mohan Sharma "depart[ed] from the accepted standards of medical pr tice by practicing medicine while impaired by a cognitive disability" and whether this parture was a substantial factor in bringing about plaintiff's injury. The jury was instructed, i addition to the being provided with the standard definition of negligence and the relevant porti n ofNew York Education Law§ 6530, that "malpractice is professional negligence and medica malpractice is the negligence ofa doctor." The jury was further instructed that such "negligen e is the failure to use reasonable care under the circumstances, doing something that a reasonably rudent doctor would do under the circumstances, it's a deviation or departure from accepted p actice." The jury was told that it was to determine whether Dr. Mohan Sharma was impaired by a mental disability at the time of the alleged incident or should have been aware of his di ability, and whether his continued practice constituted a deviation or departure from accept d practice of the profession. The unique circumstances of this case thus require one to consider whe Mohan Sharma departed from the accepted standards of the medical profession practice medicine under a disability that he knew (or should have known) cause masturbatory automisms and whether because the plaintiff was the unfortunate these automisms while a patient in Mohan Sharma's office, these events can be substantial relationship to the rendition of medical treatment" to the plaintiff. er the defendant y continuing to him to exhibit ictim of one of aid to "bear There was ample testimony that the plaintiff was a long-term patient of octor Mohan Sharma and was present in his office, indeed in the exam room, to receive the r sults of tests related to a condition that causes her to have low blood pressure. The plaintiff expert witness -5- [* 6] testified that the plaintiffs presence in the examination room was related to her iagnosis and treatment because she was "[i]nteracting with a doctor. Finding out about medi al tests would include treatment in a broad sense." There is little question, then, that the plaint ffs status as a patient placed her in the exam room at the time that the sexual abuse occurred. Next, the defendant's own expert testified, as a general matter, that "[m] practice, one of the things in malpractice is that you have a condition that renders you unable to eliver the care or commit the malpractice. . . . So to commit malpractice, he would have had to have known he had a problem that rendered him unable to deliver the care properly.... " Consi tently, plaintiffs expert testified that practicing medicine while impaired by a mental d sability is a violation of the standards of care in New York because "[o]ur patients deserve g od care. And they deserve to not be hurt. One of the things, rules of medicine, is above all els do no harm." Plaintiffs expert further opined that Mohan Sharma violated the standard of car in this case because "he had an impairment in his cognition and he was aware of that he had an impairment." The following cases are informative. In NX v. Cabrini Medical Center, 97 NY2d 247 [2002], the Court of A peals denied summary judgment to the defendant hospital where the plaintiff was sexually ab sed by a surgical resident while she was sedated and in the recovery room following surg ry. At the time of the abuse, the nurses in the recovery room indicated that they were attending o a patient just a few feet away, without the curtains drawn, and acknowledged that residents wer not directly assigned to the recovery room. The court, allowing plaintiffs direct negligence claim to proceed, stated that it was not imposing a "gatekeeping" function upon nurses to stand g ard and monitor physician interactions with patients. (NX, 97 NY2d at 255). Rather, the court tated that "this confluence of factors provides a sufficient basis from which a jury could detcrm ne that the nurses unreasonably disregarded that which was readily there to be seen and he d, alerting them to the risk of misconduct against plaintiff .... " (Id. at 254). In Rasche/ v. Rish, 110 AD2d 1067, 1068 [4th Dept 1985], the Appellat Division, Fourth Department denied summary judgment on the issue of whether defendant hospi l breached its duty to investigate a physician's competence before renewing his staff privilege . The court found that "the failure of a hospital to develop and adhere to reasonable proced res for reviewing independent a physician's qualifications creates a foreseeable risk of harm thus establishing duty to such papers." These cases, though not directly analogous, highlight the standard to gu foreseeable risks. So, too, the unique facts presented require independent consi than rote application of general rules. Upon the evidence presented, a reasonab determine that the plaintiff was present in the examination room at the time of patient of Dr. Mohan Sharma and that the events that unfolded were substantia treatment. Further a reasonable jury could have determined that Dr. Sharma's cognitive decline and his own past acts, together with his failure to protect his i -6- d patients from eration rather jury could e abuse as a y related to her owledge of his tellectually [* 7] disabled patient from an unreasonable risk of harm was a breach of his professio amounting to professional malpractice. Accordingly, the branch of defendants' aside the verdict is denied. As to the branch of defendant's motion to set aside the damages award excessive, CPLR 5501 (c) indicates that an award may be excessive or inadequate "if it de ·ates materially from what would be reasonable compensation." Plaintiff testified that as a rcsul of the incident, she experienced, and continues to experience symptoms of PTSD and depressio , night terrors, incontinence and flashbacks. Her mother confirmed these manifestations. Plai iff s expert testified that her PTSD is particularly impactful due to her disabilities and conti ues to interfere with her social relationships. He further explained that the plaintiff would likel deal with the physical and psychiatric effects of this event for the rest of her life. Defendant's own expert affirmatively testified that following the inciden, the plaintiff was suffering from post traumatic stress disorder but with treatment, the sympto s have resolved. He based this opinion on records relating to plaintiffs therapy, which show that the plaintiff ceased seeing a therapist in February of2016 and for a number of sessi ns prior, "plaintiff denie[d] any issues." However, plaintiff and her mother testified that he continues to treat with a psychiatrist and takes Zoloft® for depression. Based on this record the court finds that the jury's determination was not contrary to a fair interpretation of the evid nee. As to the plaintiffs motion for sanctions, the court finds that the defend ts' motion was not frivolous or wholly without argument in law. To the contrary, the issued rai ed by these motions have been the subject of significant consideration. However, the court does find that the defendants improperly failed to a transcript to their motion and the plaintiff is entitled to the costs associated wi having to provide the same. In this regard, counsel for the plaintiff shall provide an affid vit itemizing such costs and a proposed order for the court's signature. For the foregoing reasons, it is hereby ORDERED, that defendants' motion to set aside the verdict pursuant t CPLR 4404 (a) is denied; and it is further -7- [* 8] ORDERED, that plaintiffs cross-motion is granted to the extent that t e plaintiff is awarded costs associated with providing the trial transcript as outlined above, d is otherwise denied. This constitutes the decision and order of this Court. All applications n addressed herein are denied. specifically Dated: Mineola, New York October 1, 2018 Attorney for Plaintiff Leonard F. Lesser, Esq. Simon Lesser, PC 355 Lexington Avenue, 10th Floor New York, NY 10017 212-599-5455 2125995459@fax.nycourts.gov OCT 0 2 201 NASSAU COU TY COUNTY CLERK'S FFICE Attorney for M. Sharma & Caring Medical Matthew J. Conroy, Esq. Schwartz Law 666 Old Country Road, 9th Floor Garden City, NY 11501 516-745-1122 Attorneys for Hita Sharma Steven F. Goldstein, Esq. One Old Country Road, Ste. 318 Carle Place, NY 11514 516-873-0011 5168730120@fax.nycourts.gov -8-
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