Order Denying Hospital's Motion to Amend to Assert Release Defense Reviewable on Appeal from Final Judgment in Failure to Diagnose Aneurysm

A man suffered a sudden, severe headache accompanied by vomiting and sensitivity to light. The headache persisted for three weeks. The man consulted several doctors including his primary care physician and a neurologist. The man underwent a CT scan at a hospital. The CT scan was either misread or not read at all. The headache was caused by an undetected aneurysm in a blood vessel near the brain. The aneurysm was only detected when it ruptured twenty days after the onset of headache. This severe stroke left the man permanently disabled.


The man and his wife sued the primary care physician, neurologist, and hospital for medical malpractice for failure to diagnose and treat the man’s aneurysm. After a trial on liability and damages, a jury found that if the CT scan had been read properly, the aneurysm could have been detected and the stroke prevented. The jury also found that the defendants were negligent and that their negligence was a substantial factor in causing the plaintiffs’ injuries. The jury assigned 5% of the fault to the primary care physician, 1% to the neurologist, and 75% to the hospital. It assigned the remaining 19% of the fault to a non-party with which the hospital had an arrangement for the reading of CT scans. The jury also found that the hospital was vicariously liable for the non-party’s negligence. The jury awarded the plaintiffs damages in various categories totaling approximately $5.1 million.


Three motions were made after this verdict was rendered. First, the plaintiffs moved to set aside as inadequate the damages portion of the verdict. As to the most significant categories of damages, on which the jury had awarded approximately $4 million, the trial court granted the motion, ordering a new trial as to these items unless the defendants agreed to increase the amounts to a total of $17.4 million. The defendants rejected the additur, and a new trial on damages took place.


Second, between the first and second trials, the hospital moved to amend its answer to assert a defense of release, and to dismiss conditionally, on the ground of release, most of the plaintiffs' claims against it. The trial court denied the motion, holding that plaintiffs would be prejudiced by the belated amendment.


Third, shortly before the new trial on damages, the plaintiffs moved in limine to preclude any testimony or evidence contesting causation. The trial court granted this relief, concluding that the issue of causation had been decided by the first jury, and could not be relitigated.


Following the second trial on damages, the jury awarded the plaintiffs approximately $16.7 million in damages in addition to the undisturbed $1.1 million portion of the first verdict. The trial court entered judgment accordingly. The defendants appealed. The Supreme Court, Appellate Division affirmed holding that the hospital’s motion to amend was properly denied because the releases it sought to rely on were null and void and that the defendants had failed to preserve their argument that the trial court's additur was excessive. The majority did not discuss the preclusion of the defendants' causation testimony at the second trial. The defendants were granted leave to appeal.


The New York Court of Appeals affirmed, but modified the lower court’s order to require a new trial on damages for pain and suffering, because the courts below erred in holding that causation issues could not be litigated at a damages trial. The Court of Appeals held that the order denying the defendant's motion to amend to assert a defense of release was reviewable, overruling <c>Best v. Yutaka, 90 N.Y.2d 833 (1997)</c> and <c>Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, 96 N.Y.2d 300 (2001)</c>. The Best and Arnav cases held that the grant or denial of a motion to amend is always unreviewable on appeal from a final judgment. Under New York Civil Practice Law and Rules § 5501(a)(1), an appeal from a final judgment brings up for review a non-final judgment or order only when the non-final decision necessarily affects the final judgment. The court held that when an order granting or denying a motion to amend relates to a proposed new pleading that contains a new cause of action of defense it necessarily affects the final judgment. The court found that the hospital's motion to amend, if granted, would have added a new defense to the case—one that arguably would have significantly changed the case's result. Therefore, the hospital’s motion to amend was reviewable on appeal from a final judgment.


Even though the appellate court found the issue reviewable, it nonetheless held that the trial court did not abuse its discretion in denying, as untimely, the hospital's motion between the first and second trials to amend its answer to assert a defense of release. The court reasoned that although the hospital claimed that the releases did not come to its counsel's attention until after the first jury's verdict, the hospital could have discovered the existence of the releases much sooner. The trial court found, and had a basis for finding, that the hospital's unexcused delay in relying on the releases prejudiced the plaintiffs, since, under the hospital's release theory, the hospital was released for its own actions, but not for the actions of a non-party with which the hospital had an arrangement for the reading of CT scans. Had the plaintiffs been aware of that defense earlier, they would surely have made an effort to persuade the jury at the first trial that more fault should have been attributed to the non-party than to the hospital itself.


Additionally, the court of appeals held that after liability had already been established, the defendants were entitled to show, at the second, damages-only trial, that, even with appropriate medical care, some of the injuries that the patient suffered were inevitable. The court reasoned that while the first jury did decide that the malpractice was a substantial factor in causing the patient's stroke, the defendants were entitled to show that some of the pain and suffering that the patient endured was not preventable.


Also, the court held that the trial court's error in failing to permit the defendants to show that some injuries were inevitable required reversal of the second jury's award for pain and suffering. Counsel for one of the defendants elicited testimony, while cross-examining the plaintiffs' expert witness, that the man’s groin wound was the result of an angiogram, and that an angiogram would have been necessary to deal with the patient's aneurysm even if his stroke had not occurred, but the trial court ruled that and certain other testimony inadmissible


Moreover, the court held that there was sufficient evidence to support the jury's finding of fault by the non-party with which the defendant hospital had an arrangement for the reading of CT scans. Evidence adduced at trial showed that there was an arrangement between the non-party and the hospital, by which any scans of the head taken at the hospital were read and interpreted by the non-party. There was expert testimony that the CT scan of the patient's head, taken 15 days before his stroke, would, if properly interpreted, have disclosed a hemorrhage, and that that finding should have led to the taking of measures that could have stopped the stroke from occurring. No written report was made of the non-party's reading of the CT scan. The patient and the doctors treating him were told that the CT scan showed no abnormality.


Finally, the court agreed with the lower court that the claimed excessiveness of the trial court's additur was not properly before it, but for different reasons. The court held that the defendants were required to challenge the amount of additur on appeal before a new trial took place. If there is not time for this review, and neither the trial court nor the appellate court will grant a stay, the party's remedy is to reject the proffered stipulation and retry the case.


See: Oakes v. Patel, 2013 WL 1294518, 2013 N.Y. Slip Op. 02164 (N.Y., April 2, 2013) (not designated for publication).


See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation