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September 18, 1992

JAREK TYLENDA MOLLER, Plaintiff, against NORTH SHORE UNIVERSITY HOSPITAL, its agents, servants and employees, and DOCTOR DAVID LEVINE, individually, Defendants.


The opinion of the court was delivered by: ARTHUR D. SPATT

SPATT, District Court.

 The issue in this medical malpractice action is the legal effect on successive medical tortfeasors of two prior separate settlements involving the original tortfeasors.

 Counsel for both defendants in this action have moved and cross-moved, pursuant to Fed. R. Civ. P. 56, for summary judgment on the amended complaint. The Court heard oral argument of the motions on August 14, 1992, at which time the matter was set down for a hearing, pursuant to Fed. R. Civ. P. 43(e), for August 31, 1992, at 9:30 a.m. Rule 43(e) provides as follows:

 "(e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposition."


 According to the affidavits and memoranda submitted in this summary judgment motion, the conceded facts are as follows: the plaintiff in the instant malpractice action is a 21 year-old Swedish national who came to the U.S. in June 1988 and worked as a waiter at Squire's Restaurant in Great Neck for three days until he was seriously injured in an automobile accident on September 18, 1988. At the time of the accident, the plaintiff was a passenger in a car operated by one Richard Treulieb, who was driving the plaintiff and a co-worker home from a party at which they had been working. Treulieb's car struck a utility pole; the vehicle split in half and Moller was ejected from the back seat.

 The plaintiff sustained serious injuries and was treated as a trauma patient at North Shore University Hospital. Moller was taken to North Shore University Hospital emergency room, where the defendant Dr. David Levine was called in to evaluate the plaintiff as a trauma patient. A physical examination and various laboratory tests and x-rays were taken, and based on the results, Moller was taken to the operating room at 2:20 a.m., at which time, Dr. Levine performed an exploratory laparotomy, assisted by a Dr. Kerner.

 The laparotomy revealed a lacerated spleen, two lacerations of the right lobe of the liver, a tear of the ascending colon and another tear of the transverse colon, and a hematoma at the base of the ascending colon mesentery. The plaintiff then underwent a splenectomy and further surgery to repair the other injuries. According to the hospital reports, the operation lasted approximately one and one-half hours and plaintiff was sent to the recovery room at 4:45 a.m. Significantly, the plaintiff was noted to have movement of all extremities postoperatively.

 At 6:45 a.m., a repeat chest x-ray was taken and a possible laceration of the aorta was detected. A thoracic angiogram was performed and based on the results, the patient was returned to the O.R. where Dr. Michael Hall, a vascular surgeon, performed a left thoracotomy and repaired the aortic tear. This procedure lasted approximately four and one-half hours and was stated to be "uncomplicated."

 Postoperatively, on October 1, 1988, the plaintiff was noted to have "decreased motor strength of his lower extremities bilaterally." Subsequent neurology and urology consultations and tests resulted in a diagnosis of "anterior spinal artery syndrome, which resulted in paraparesis of plaintiff's lower extremities and a neurogenic bladder and bowel." Paraparesis is defined in Stedman's Medical Dictionary, Fourth Edition, as "a slight degree of paralysis, affecting the lower extremities." Neurogenic is defined as "originating in or starting from, or caused by, the nervous system or nerve impulses."

 On October 20, 1988, approximately 32 days after the accident, Moller was discharged from North Shore Hospital in stable condition and was transferred to the Rusk Institute of Rehabilitative Medicine at NYU, where he remained until February 23, 1989, a period of four months, and then returned to his native Sweden.

 While Moller was still in North Shore Hospital, in October, 1988, his attorney commenced a negligence suit in Supreme Court, Queens County against the defendants Treulieb, Squire Catering, and a Mr. Daniels, the host of the party, seeking thirty million dollars in damages.

 In January, 1989, the plaintiff settled with the defendant Treulieb and executed both a general release and stipulation of discontinuance with prejudice as to Treulieb. In that document, the plaintiff reserved all of his rights with respect to the remaining defendants, namely, Squire Catering and Daniels. In consideration for the general release to Treulieb, Moller received the sum of $ 250,000, which was the full amount of the insurance coverage by Hanover Insurance Company on the Treulieb motor vehicle.

 The case against the remaining two defendants, Squire Catering and Daniels, went to trial in Supreme Court, Queens County in April 1990. The trial was bifurcated. At the conclusion of the plaintiff's case on liability, the complaint was dismissed against the defendant Daniels. The jury rendered a liability verdict of 60% against the driver Treulieb and 40% against the defendant Squire Catering.

 During the damages phase of the trial, the plaintiff's attorney produced Dr. Nathanial Shafer, a physician board certified in neurology and internal medicine, who testified that the plaintiff had permanent paralysis of the lower extremities and a permanent neurogenic bowel and bladder. After the plaintiff's medical expert testified but before the issue of damages was given to the jury, the case was settled as against the defendant Squire Catering by the Public Service Mutual Insurance Co. for $ 475,000. The maximum insurance coverage was $ 500,000.

 Pursuant to an agreement entered on the record, the parties, on April 24, 1990, entered into a stipulation of discontinuance with prejudice and a general release was executed in favor of Squire Catering. Neither document reserved any right on the part of the plaintiff to proceed against any other potential defendants.

 In November, 1990, seven months after the negligence suit was settled as against the defendant Squire Catering, the plaintiff commenced the present medical malpractice action against the defendants Dr. David Levine and North Shore University Hospital.

 The defendant Dr. David Levine was previously granted permission to amend his answer to include the affirmative defense that this action is barred by reason of the plaintiff's having received "complete compensation" for his injuries by virtue of his settlement with the actual, original tortfeasors who are not parties to the present action. The defendant North Shore Hospital was permitted to amend its answer to assert the same defense as well as a second affirmative defense, namely, that the plaintiff's recovery against the Hospital, if any, shall be set off and reduced by any amount of money or compensation the plaintiff received by settlement or judgment rendered in the prior legal proceeding.


 The Court has previously outlined the law of summary judgment as it relates to the motions made by the defendants in this case. Before deciding those motions, the Court scheduled the instant hearing on the issue of the legal effect of the two prior settlements in the state court.

 The New York Court of Appeals has held that N.Y. General Obligations Law ยง 15-108(a) imposes upon the plaintiff "who releases the original tort-feasor the burden of proving the extent to which his release reduces his claim against a hospital or physician who through malpractice aggravates the original injuries" ( Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 499 N.Y.S.2d 904, 906, 490 N.E.2d 823 [1986]). In Hill, the plaintiff was injured when a sidewalk elevator plummeted some 18 feet into a subcellar, causing pain in the plaintiff's feet, shoulder and wrist (id.). He was x-rayed at St. Clare's Hospital, but was told by the doctors that he had not broken any bones and that he suffered "soft tissue injury" (id.). The emergency room personnel wrapped his ankle, gave him a cane, and told him to see a "company doctor" (id.).

 The plaintiff in Hill visited a clinic five or six times during the next two months and was eventually referred to a specialist who diagnosed fractures of the second, third and fourth metatarsal bones of his right foot and a complete dislocation of his left great toe which had not been diagnosed at St. Clare's Hospital nor at the clinic. Hill then brought suit against the owner of the building where he was injured, the elevator manufacturer and the manufacturer of the elevator's gears, the original tortfeasors, but not the doctors or the hospital.

 Some time thereafter, a separate medical malpractice action was commenced. There were two separate actions then outstanding. Prior to the trial of the malpractice action, the lawsuit against the original tortfeasors was settled for $ 57,000. A general release was signed containing no reservation of rights or allocation of damages as to injuries, although the amount paid by each of the contributing defendants was set forth (id. at p. 907). The defendant physicians and St. Clare's Hospital were permitted to amend their answers to assert the release as an affirmative defense.

 As the Court of Appeals noted:

 " . . . at a hearing . . . pursuant to CPLR 4533-b at which plaintiff testified, the bills of particulars in the prior actions were introduced, and plaintiffs' attorneys conceded that the claim made against the original tort-feasors included the aggravation of [plaintiff's] injuries by the present defendants and that the release given was 'a release of all claims asserted in the action against them.' The Trial Judge, concluding that the burden of proof was upon defendants to establish . . . what portion was for injuries to portions of [plaintiff's] body not involved in the present action, and what portion was for the present defendants' aggravation of the original injuries to his left foot, denied any offset for the prior settlement" (Hill, supra, at p. 907).

 On appeal, the Appellate Division, First Department affirmed the trial court. However, the New York Court of Appeals modified the decision and remitted the case to the Supreme Court, noting: "we conclude that . . . the courts below erred in holding that defendants bore the burden of proving what was covered by the release given to the original tort-feasors" (id. at p. 908).

 Original tortfeasors are liable not only for the injuries incurred by a plaintiff, but also for the aggravation of those injuries caused by a treating physician (see Milks v. McIver, 264 N.Y. 267, 190 N.E. 487 [1934]). Such liability, however, is successive rather than joint, and the injured plaintiff cannot recover the same damages twice (Hill v. St. Clare's Hospital, supra, at p. 910; Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 ).

 This Court also finds persuasive the recent decision of Justice Ira Gammerman in Lilly v. N.Y. City Health & Hospitals Corp., IAS Part 27, NYLJ, April 21, 1992. In that case the plaintiff, who had fallen in the stairway of the building where he lived, sued the owner of the building. Seven years later, the plaintiff settled the case and signed a general release to the landlord, reserving his rights against any other parties. Two months later, the family brought an action against the N.Y.C. Health and Hospitals Corp. alleging that the improper care of the plaintiff resulted in permanent neurogenic damage. In that decision, Justice Gammerman noted the following:

 "General Obligations Law 15-108 provides that a release 'given to one or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death . . . does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide'" (emphasis supplied).

 General Obligations Law 15-108 has been held to cover successive as well as joint tortfeasors (see Hill v. St. Clare's Hospital, supra; Utter v. South Brookhaven Obstetric & Gynecologic Associates, 135 A.D.2d 811 [2d Dept.], 522 N.Y.S.2d 915 [1987]). Since the present defendants themselves concede that they are successive tortfeasors, General Obligations Law 15-108 applies.

 Furthermore, General Obligations Law 15-108 applies whether or not a successive tortfeasor was a party to an action brought by the plaintiff at the time he/she released the original tortfeasor (see Mitchell v. New York Hospital, 61 N.Y.2d 208, 215, 473 N.Y.S.2d 148, 461 N.E.2d 285 [1984]). General Obligations Law 15-108 permits a plaintiff to settle with ...

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