Calendar Date: April 24, 2017
H. Fisher, PC, Kingston (Michael J. Hutter of Powers &
Santola, LLP, Albany, of counsel), for appellants.
Steinberg, Symer & Platt, LLP, Poughkeepsie (Ellen A.
Fischer of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Cahill, J.), entered
September 4, 2015 in Ulster County, upon a verdict rendered
in favor of defendant.
December 20, 2008 through January 21, 2009, plaintiff Suzanne
Meyer was admitted to the intensive care unit at
defendant's facility for care and treatment after
undergoing surgery to address a large perforation to the
sigmoid colon, which had caused fecal matter to freely leak
into the abdomen. During the course of her stay in the
intensive care unit, Meyer developed pressure sores on her
buttocks and coccyx. On January 22, 2009, Meyer was
transferred to Albany Medical Center for further treatment
relating to her perforated colon, at which time she was
determined to have developed advanced pressure sores on her
buttocks and sacral areas. Meyer ultimately underwent
numerous surgical procedures to address these pressure sores.
Thereafter, Meyer and her husband, derivatively, commenced
this negligence action against defendant, alleging that the
care and treatment provided to Meyer was not in accordance
with good and accepted medical standards. Following a trial,
the jury rendered a verdict in favor of defendant. Supreme
Court subsequently issued a judgment dismissing the action,
and plaintiffs now appeal.
argue that Supreme Court failed to adequately respond to the
jury's request for clarification as to the meaning of
"care and treatment, " as that phrase was used in
question number one of the verdict sheet . At trial,
plaintiffs advanced a theory of liability premised upon
defendant's failure to exercise reasonable care to
prevent the development of pressure sores and to care for and
treat the pressure sores that ultimately developed.
Plaintiffs specifically claimed that defendant's
employees failed to provide particular interventions -
including turning Meyer every two hours - set forth in
defendant's policies and protocols relating to the
prevention and treatment of pressure sores, and that such
failure could be inferred from the absence of any
documentation noting that the required interventions had been
charge to the jury, Supreme Court properly explained that
defendant was "under a duty of care to use reasonable
care in providing care and treatment to patients through its
employees" and that "reasonable care" meant
the "degree of care customarily used by general
hospitals through their employees in providing care and
treatment to their patients." The court further stated,
"There has been testimony at trial that [defendant]
failed to comply with its own policies. If you find that
[defendant] did fail to comply with its own policies, you may
consider the failure as some evidence of negligence on the
part of [defendant], along with the other evidence in this
case, provided further that the failure was a substantial
factor in causing [Meyer's] injury."
after the jury retired to deliberate, Supreme Court received
a note from the jury that stated, "We the jury ask for a
clear explanation of 'care & treatment' as stated
in Q #1 of the Exhibit #7. Does 'care &
treatment' include paperwork/documentation & policy?
Or only the physical 'care & tx' given?"
Outside the presence of the jury, the court read the jury
note aloud to counsel and solicited comments as to how to
respond. The court proposed and considered various possible
responses - none of which were acceptable to counsel for both
parties - before ultimately concluding that the jury was
asking whether the alleged lack of documentation, in and of
itself, constituted negligence. Defendant's counsel
disagreed, and the following colloquy took place:
COURT: What I am simply going to tell them is that the
failure to, the failure to document records, as plaintiff[s]
contend, is not in and of itself negligence here. I think
that's really what they are asking.
COUNSEL]: Your Honor, I would take an exception to that. I
think part of the proof is that not only was it - the
documentation is evidence they did not do what they claimed
COURT: That's why there is going to be the next question.
I think that's a fair description. You guys can have an
exception. It's time to move ahead. I don't see -
what I originally proposed saying is that I will say both
things. I will say its not negligence in and of itself. I
will say... plaintiff[s] put forth this information as
evidence of actual deficiencies in the physical care and
treatment and that is, that is what it was. I mean, you know.
COUNSEL]: Judge, I think they have the instruction as to
proximate cause and that perhaps the [c]ourt could remind
them or direct them back to the instruction as to proximate
cause with regard to the documentation itself. If they find
that the lack of documentation is the proximate cause, then
so be it, but if that's really what they are asking, what
they are saying is, was ...