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Porcelli v. Northern Westchester Hospital Center

Supreme Court of New York, Second Department

October 2, 2013

Teresa Porcelli, etc., appellant,
v.
Northern Westchester Hospital Center, et al., respondents, et al., defendants. Index No. 5043/03

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, JEFFREY A. COHEN, JJ.

DECISION & ORDER ON MOTION

Motion by the appellant for leave to reargue appeals from two judgments of the Supreme Court, Westchester County, entered November 30, 2011, and January 30, 2012, respectively, which were determined by decision and order of this Court dated May 15, 2013. Cross motion by the respondent Northern Westchester Hospital Center for leave to reargue the appeals and, upon reargument, to modify the decision and order of this Court dated May 15, 2013, by deleting the provision awarding costs to the appellant, payable by Northern Westchester Hospital Center.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, it is

ORDERED that the cross motion is denied; and it is further,

ORDERED the the motion is granted and, upon reargument, the decision and order of this Court dated May 15, 2013, is recalled and vacated, and the following decision and order is substituted therefor:

Pirrotti Law Firm LLC, Scarsdale, N.Y. (Anthony Pirrotti, Jr., of counsel), for appellant.
Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for respondent Northern Westchester Hospital Center.
Vouté, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Joan S. Levin of counsel), for respondent Melissa Tsai.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from (1) a judgment of the Supreme Court, Westchester County (Smith, J.), entered November 30, 2011, which, upon a jury verdict in favor of the defendant Melissa Tsai and against her on the issue of liability, is in favor of that defendant and against her dismissing the complaint insofar as asserted against that defendant, and (2) a judgment of the same court entered January 30, 2012, which, upon the granting of the motion of the defendant Northern Westchester Hospital Center pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action asserted against that defendant alleging that it is directly liable to the plaintiff in connection with its alleged policy of intubation of certain newborn infants, made at the close of the plaintiff's evidence, and upon the jury verdict, is in favor of that defendant and against her, in effect, dismissing the causes of action asserted against that defendant alleging that it is directly liable to the plaintiff in connection with its alleged policy of intubation of certain newborn infants and that it is vicariously liable for the tortious conduct of the defendant Melissa Tsai.

ORDERED that the judgment entered November 30, 2011, is reversed, on the law, the complaint is reinstated against the defendant Melissa Tsai, and the matter is remitted to the Supreme Court, Westchester County, for a new trial against the defendant Melissa Tsai before a different Justice, and the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that the judgment entered January 30, 2012, is modified, on the law, by deleting the provision thereof in favor of the defendant Northern Westchester Hospital Center and against the plaintiff, in effect, dismissing the cause of action asserted against that defendant alleging that it is vicariously liable for the tortious conduct of the defendant Melissa Tsai; as so modified, the judgment entered January 30, 2012, is affirmed, the cause of action against the defendant Northern Westchester Hospital Center alleging that it is vicariously liable for the tortious conduct of the defendant Melissa Tsai is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on that cause of action in accordance herewith before a different Justice, including the new trial against the defendant Melissa Tsai, and the entry of an appropriate amended judgment thereafter; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On November 14, 2000, the plaintiff gave birth to a daughter (hereinafter the infant) at the defendant Northern Westchester Hospital Center (hereinafter the hospital). Due to the presence of "thin" meconium upon delivery, the infant's mouth and nose were suctioned, as soon as the infant's head emerged, to remove any meconium-stained fluid. After the infant was delivered, the defendant physician Melissa Tsai used a laryngoscope to suction any meconium from the infant's stomach, and inserted an endotracheal tube through the infant's mouth into the airway to check for the presence of meconium below the vocal cords. Tsai did not observe meconium in that part of the infant's body. Shortly thereafter, the infant developed, among other things, severe respiratory problems, and underwent several surgical procedures, including a thoracotomy.

In March 2003, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice, alleging that Tsai negligently inserted the endotracheal tube, causing, among other things, a pharyngeal tear which resulted in an infection and permanent injuries, that the hospital, as Tsai's employer, was vicariously liable for Tsai's tortious conduct, and that the hospital was directly liable to the plaintiff by virtue of its adoption and implementation of a policy requiring intubation of all infants in whom retained meconium was observed. At the ensuing jury trial, following the close of the plaintiff's case, the hospital moved pursuant to CPLR 4401 for judgment as a matter of law on the cause of action asserting that it was directly liable to the plaintiff by virtue of its alleged policy of intubating newborn infants who had observable retained meconium, and the trial court granted the motion. Following the close of the evidence, the jury returned a verdict on the issue of liability in favor of Tsai, finding that she did not depart from accepted medical practice. On November 30, 2011, the Supreme Court entered a judgment in favor of Tsai and against the plaintiff dismissing the complaint against Tsai, and on January 30, 2012, the Supreme Court entered a judgment in favor of the hospital and against the plaintiff ...


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