The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Defendants challenge a large medical malpractice judgment against them
on various grounds. We reject most of their arguments, but modify the
Appellate Division'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.
On July 18, 1998 Daniel Oakes suffered a sudden, severe headache that was accompanied by vomiting and sensitivity to light. The headache persisted over the next three weeks. Evidence at trial showed that it resulted from an aneurysm (i.e., a balloon-like bulge) in a blood vessel near the brain; the aneurysm went undetected until it ruptured on August 7, 1998, causing a severe stroke that left Mr. Oakes permanently disabled. During the 20 day interim, Mr. Oakes consulted several doctors, including two who now remain as defendants: his primary care doctor, Rajnikant Patel, and a neurologist, Satish Mongia. He also had a CT scan at Millard Fillmore Suburban Hospital; Fillmore Suburban was owned by Millard Fillmore Hospitals, a corporation to which defendant Kaleida Health is the successor in interest. There was evidence at trial supporting a finding that the CT scan was either misread or not read at all, and that if it had been read properly the aneurysm could have been detected and the stroke prevented.
Mr. Oakes and his wife brought this action in 2000.*fn1
In 2008, after a trial on liability and damages, a jury found that Dr. Patel, Dr. Mongia and Fillmore Suburban were negligent and that their negligence was a substantial factor in causing the injuries complained of. The jury assigned 5% of the fault to Dr. Patel, 1% to Dr. Mongia, and 75% to Fillmore Suburban. It assigned the remaining 19% of the fault to Dent Neurologic Group, a non-party with which Fillmore Suburban had an arrangement for the reading of CT scans. The jury also found that Millard Fillmore Hospitals was vicariously liable for Dent's negligence. The jury awarded plaintiffs damages in various categories totaling approximately $5.1 million. The main issues on this appeal arise from three motions that were made after this verdict was rendered.
First, 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 defendants agreed to increase the amounts to a total of $17.4 million. Defendants rejected the additur, and a new trial on damages took place.
Secondly, between the first and second trials, Kaleida (which was sued
for Millard Fillmore Hospitals' liability) moved to amend its answer
to assert a defense of release, and to dismiss conditionally, on the
ground of release, most of plaintiffs' claims against Kaleida. The
release defense was based on proofs of claim that plaintiffs had
submitted in 2003 in liquidation proceedings relating to Kaleida's
which we will explain in more detail below. The trial
court denied the motion, holding that plaintiffs would be prejudiced
by the belated amendment.
Thirdly, shortly before the new trial on damages, plaintiffs moved in limine to preclude, among other things, "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.
In 2009, the jury at the second trial awarded damages totaling approximately $16.7 million, in addition to the undisturbed $1.1 million portion of the first verdict. The trial court entered judgment accordingly, and the Appellate Division affirmed, with two Justices dissenting in separate opinions (Oakes v Patel, 87 AD3d 816 [4th Dept 2011]).
The Appellate Division majority held, among other things, that Kaleida's motion to amend was properly denied because the releases it sought to rely on were "null and void"
(87 AD3d at 819); and that defendants had failed to preserve their argument that the trial court's additur was excessive (id. at 819-820). The majority did not discuss the preclusion of defendants' causation testimony at the second trial. Justice Smith dissented on the ground that the damages awarded by the second jury were excessive (a claim defendants do not pursue in this Court). Justice Peradotto dissented from the majority's ruling on the additur: she would have found that defendants preserved the issue, by opposing the motion for a new trial on damages and by rejecting the proposed additur, and would have held the additur to be excessive.
The Appellate Division granted defendants leave to appeal (87 AD3d 1414 [4th Dept 2011]). We now modify the Appellate Division's order to direct a new trial on the issue of damages for Mr. Oakes's pain and suffering, and otherwise affirm.
We agree with the Appellate Division majority that the claimed excessiveness of the trial court's additur was not properly before it, though we reach that conclusion by a route ...