Gnoj v. City of New York

29 A.D.2d 404, 288 N.Y.S.2d 368, 1968 N.Y. App. Div. LEXIS 4397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1968
• Status: Published

Opinions

McNally, J.

Plaintiff, age 65, since deceased, recovered a verdict of $135,000 in this action for personal injuries. The basic malpractice claim is negligence in failing to ascertain that plaintiff was suffering from renal tuberculosis. The deceased was employed at Bellevue Hospital since 1952 as a kitchen worker. He was admitted as a patient in said hospital in 1955, at which time he was suffering from pulmonary tuberculosis. He was readmitted at the Urology Clinic of the hospital in 1958 after complaints of pain in the right flank and dysuria. There were other admissions and procedures but it was not until in or about July, 1961 that the diagnosis of renal tuberculosis was made. The last hospital treatment was during December, 1962. A notice of claim was filed with defendant on January 9,1963.

Deféndant-appellant argues: (1) the notice of claim was untimely because not made within 90 days after the claim arose (General Municipal Law, § 50-e, subd. 1); (2) error in failing to strike the testimony in behalf of plaintiff of a medical expert originally retained by defendant to examine plaintiff’s hospital records and to report to defendant in the course of the preparation of the defense of this case; and (3) the verdict is excessive.

Defendant concedes the evidence of malpractice presented a jury issue. The timeliness of the notice of claim rests on the continuity of plaintiff’s treatment for his physical condition which arose in 1958 and continued thereafter until his last treatment in December, 1962, which is a jury question. The Statute of Limitations begins to run from the date of the final treatment provided that treatment is continuous from the time of the incident of malpractice (Borgia v. City of New York, 12 N Y 2d 151). Neither side specifically requested that this issue be submitted to the jury. We conclude, however, that the verdict is grossly excessive. In addition, substantial and prejudicial error in the refusal to strike expert medical testimony adduced by plaintiff on liability requires a new trial in the interests of justice.

Dr. Wershub was retained by defendant as a medical' expert to review the hospital records and to render an opinion as to whether the hospital negligently failed to diagnose plaintiff’s renal tuberculosis in 1958. Dr. Wershub, called by plaintiff, was preceded by Dr. Swersie, a medical expert, who testified in his opinion the failure to diagnose plaintiff’s condition as renal tuberculosis was the product of the hospital’s failure to follow generally accepted diagnostic procedures. Dr. Wershub ’s testimony, therefore, was not essential to plaintiff’s proof of malpractice; it was clearly cumulative. We are not called upon to decide whether the cumulative expert testimony may have been objectionable per se; it was, however, grossly improper when its effect was to convey to the jury that defendant’s expert had resolved the issue of negligence against the defendant. This was the necessary, if not intended, effect of the testimony of Dr. Wershub elicited by plaintiff that he had been retained by defendant to review the hospital records and had rendered his report to defendant with his opinion that the failure to make the diagnosis of renal tuberculosis in 1958 resulted from the hospital’s failure to follow customary procedures.

Dr. Wershub’s report to defendant was made available to plaintiff’s attorneys by direction of the court, other than the trial court, during a pretrial conference presumably in an attempt to effectuate a settlement, and thus was not voluntarily given. The Trial Justice was thus in error in holding that the exchange of reports was voluntary. The following appears in the record:

“ It appears that a copy of Dr. Wershub’s report at one time was given to the attorneys for the plaintiff in this case, during a pre-trial conference.

“ The Court: By whom? At the direction of whom?

‘‘ Mr. Kohn: At the direction of Judge Frank, and this was done for the purpose of trying to effectuate a settlement in this case at that pre-trial conference.

‘ ‘ No settlement was effected, and the City maintains that the communication, that the report, which was given to the plaintiff’s attorney, is privileged and remains a privileged communication between the doctor and The City of New York and is a work product of The City of New York, which the doctor had no right to divulge or to discuss with the plaintiff’s attorney in any way, nor to give voluntary testimony thereof at the trial without — especially without being subpoenaed in the case, and where he says he appeared, and he expected to get paid by the plaintiff’s attorney for his testimony.”

This statement is not challenged and in fact a reading of the record makes it apparent that the report was given over by direction of the pretrial court with a view to a pretrial settlement and for no other reason.

The said report is not within the ambit of rule XI of the Rules of the Supreme Court .of New York and Bronx Counties for Exchange of Medical Information. Rule XI is inapplicable to actions for medical malpractice.

Dr. Wershub’s report is not in evidence and he testified voluntarily as plaintiff’s expert witness. (Cf. McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N Y 2d 20, 29; People ex rel. Kraushaar Bros. & Go. v. Thorpe, 296 N. Y. 222.) He was a voluntary witness who had received compensation from defendant and expected compensation from plaintiff. The testimony of Dr. Wershub should have been stricken by the Trial Justice in the exercise of discretion. Where a party, as in the instant case, does not lack expert testimony of his own choosing, an expert engaged by the opposing party should not be sought out and placed in the unethical position of accepting a retainer from both sides. (Gugliano v. Levi, 24. A D 2d 591; Matter of City of New York [Brooklyn Bridge Southwest Urban Renewal Project], 50 Misc 2d 478, 481; Ramacorti v. Boston Redevelopment Auth., 341 Mass. 377, 379.) We hold Dr. Wershub’s testimony should not have been tendered by plaintiff to the jury, especially under circumstances as in the case at bar suggesting or implying that defendant authorized or is bound by his opinion.

The judgment should be reversed, on the law and on the facts and in the interests of justice, and a new trial directed, with costs to abide the event.