On July 27, 2015, Giovanni Angieri underwent a hernia surgery performed by Angelo John Procaccino, with the assistance of an anesthesiologist, Shimon Frankel, at the defendant Northwell Health-North Shore University Hospital. Subsequently, Giovanni, and his wife, Barbara Angieri, filed a New York medical malpractice action against the hospital, Procaccino, Frankel, and Maria Musso, Giovanni’s primary care physician, and others, to recover damages for medical malpractice in connection with an alleged postoperative respiratory arrest suffered by Giovanni at the hospital on July 28, 2015.
Prior to trial, the New York Supreme Court granted the separate motions of Procaccino and Frankel for summary judgment dismissing the complaint insofar as asserted against each of them, and the action proceeded to trial against Musso and the hospital.
At trial, the Angieris’ theory of liability with respect to Musso was that she improperly failed to list certain medications Giovanni was taking for a respiratory condition on a presurgical clearance form that was forwarded to the hospital, which led to him suffering a postoperative respiratory arrest. More specifically, the Angieris’ counsel argued to the jury in his opening statement that, as a result of Musso’s failure to list Giovanni’s respiratory medications on the presurgical clearance form, hospital personnel responsible for his postoperative care “did not know that [he] needed these medications to breathe, to prevent respiratory arrest and ultimately coma.” The Angieris’ theory against the hospital was that its staff failed to adequately respond to complaints by members of Giovanni’s family that he was having difficulty breathing the day after the surgery, which also caused him to suffer respiratory arrest.
The Angieris presented, among other evidence, testimony from Musso acknowledging that she should have, but did not, list Giovanni’s respiratory medications on the presurgical report she prepared clearing him for surgery. Musso also testified that the doctors at the hospital were nevertheless aware that Giovanni was taking those medications, which were documented in a medication list contained in the hospital chart, and that the doctors at the hospital would be responsible for giving him medications following the surgery. The Angieris also called an expert witness who testified that Musso’s failure to include the respiratory medications on the presurgical clearance form was a substantial factor in the hospital’s failure to administer those medications and in causing Giovanni’s respiratory arrest. With respect to the hospital, the Angieris’ expert opined that the failure of the nurse on duty and the hospital to respond to complaints by Giovanni’s wife and his niece that he was having difficulty breathing and needed his medication was likewise a substantial factor in causing his respiratory arrest.
Musso presented evidence indicating that both Procaccino and Frankel were aware of Giovanni’s respiratory condition and his respiratory medications, as they were documented in Frankel’s pre-anesthesia evaluation notes and Procaccino’s office records. Musso also presented evidence that Giovanni was not in respiratory distress at any time during his hospitalization and that he did not suffer an acute respiratory arrest, but instead, suffered a transient arrhythmia that was unrelated to the failure to take his medications.
The hospital called an expert witness who similarly opined that Giovanni suffered “a sudden rhythm disturbance of his heart” on July 28 due to, among other factors, his obesity and long-term hypertension. The hospital’s expert testified that Giovanni’s “heart failed,” after which he had respiratory distress, which was unrelated to the absence of his medications on July 27 and July 28. The hospital’s expert opined that the nursing staff and other medical providers at the hospital appropriately responded to Giovanni, and that he did not suffer any respiratory distress at any point on July 28 before the arrhythmia.
During the trial, the Angieris’ counsel made an application, in effect, pursuant to CPLR 4402 for a new trial on the ground that Musso and the hospital improperly attempted to shift liability to Procaccino and Frankel, who had been awarded summary judgment dismissing the complaint insofar as asserted against each of them prior to trial. The Angieris’ counsel argued that summary judgment was the functional equivalent of a trial, and that the “remaining defendants [were] not entitled to the benefit of CPLR Article 16 limited liability, particularly when those [summary judgment] motions were unopposed by the defendants.”
Counsel for Musso and counsel for the hospital opposed the Angieris’ application, contending that no testimony had been elicited criticizing or attempting to blame Procaccino or Frankel for any alleged departures, and that Musso and the hospital were entitled to bring to the jury’s attention medical records and facts involving those practitioners.
The New York Supreme Court denied the Angieris’ application. The Angieris’ counsel made subsequent renewed applications for the same relief. Those applications were denied as well.
At the conclusion of the trial, the jury returned a verdict finding that, although Musso “depart[ed] from good and accepted medical practice in providing the hospital with a medical clearance form which did not include [Giovanni’s] respiratory medication on July 20, 2015,” that departure was not a substantial factor in causing his injuries. With respect to the hospital, the jury found that it did not depart from good and accepted medical practice “by failing to respond to the family’s complaints of [Giovanni’s] difficulty breathing on July 28, 2015, prior to his arrest.”
On appeal, the plaintiff contended that a new trial is warranted because the New York Supreme Court improperly permitted Musso and the hospital to shift blame for Giovanni’s injuries to Procaccino and Frankel, both of whom had been awarded summary judgment and dismissed from the action prior to trial.
The New York Supreme Court of the State of New York Appellate Division, Second Judicial Department stated in its February 21, 2024 decision: “Here, the jury’s verdict with respect to Musso was based upon a fair interpretation [*5]of the evidence, and was not contrary to the weight of the evidence. Based on the evidence presented at trial, the jury could have reasonably concluded that Musso’s failure to list Giovanni’s respiratory medications on the presurgical clearance form was not a substantial factor in causing his injuries because the doctors responsible for Giovanni’s care at the hospital were aware of those medications and, in any event, Giovanni did not suffer a respiratory arrest related to the failure to take those medications. With respect to the latter issue, Musso’s expert testified that, according to the hospital record, Giovanni’s oxygen saturation level was normal on July 28, and he was ambulating during that day. The expert concluded that there was “no evidence in the chart that [Giovanni] actually was in respiratory distress at any time during his hospitalization,” and that he did not suffer acute respiratory arrest. Additionally, counsel for Musso and counsel for the hospital read into evidence a portion of Procaccino’s deposition testimony in which he testified that the decedent suffered a “transient arrhythmia that wasn’t captured on the EKG.” The hospital’s expert witness similarly opined that Giovanni suffered “a sudden rhythm disturbance of his heart” due to, among other factors, his obesity and long-term hypertension. Thus, since the finding that Musso was negligent in failing to list the medications can be reconciled with the finding that such negligence was not a substantial factor in causing Giovanni’s injuries, the jury is presumed to have adopted that view of the evidence (see Sela v Katz, 165 AD3d at 1193). Further, the jury’s finding that the hospital was not negligent was based on a fair interpretation of the evidence and, thus, the verdict in favor of the hospital was not contrary to the weight of the evidence. As noted, the hospital’s expert opined that the nursing staff and other medical providers at the hospital appropriately responded to Giovanni, and that he did not suffer any respiratory distress at any point on July 28 before the arrhythmia.”
Source Angieri v. Musso, M.D., 2024 NY Slip Op 00887.
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