- December 4, 2017
Ginsberg & Wolf, P.C., New York, NY (Robert M. Ginsberg
of counsel), for appellants.
Vaslas, Lepowsky, Hauss & Danke, LLP, Staten Island, NY
(Neil F. Schreffler of counsel), for respondents.
M. LEVENTHAL, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the plaintiffs appeal from a judgment of the
Supreme Court, Kings County (Michelle Weston, J.), entered
February 27, 2015, which, upon a jury verdict, is in favor of
the defendants Maimonides Medical Center and Lim H. Tse and
against them dismissing the complaint.
that the judgment is affirmed, with costs.
October 12, 2009, the plaintiff Xiao Yan Chen consulted with
the defendant Lim H. Tse, a physician, to determine whether
she was pregnant. Tse confirmed that Chen was six weeks and
six days pregnant and performed a transvaginal ultrasound,
which revealed that there was no fetus in Chen's uterus.
During her examination, Tse felt a right adnexal fullness.
Fearing that Chen had an ectopic pregnancy (that is, a
pregnancy in which the embryo attaches outside of the
uterus), Tse referred Chen to the emergency room of the
defendant Maimonides Medical Center (hereinafter Maimonides).
Chen arrived at Maimonides, another ultrasound was performed.
The ultrasound showed no visible intrauterine pregnancy, but
it did show a cystic structure in the area of the right
fallopian tube and ovary. Chen underwent laparoscopy, but an
ectopic pregnancy was not seen in the fallopian tube.
October 13, 2009, Tse and another doctor recommended that
Chen receive an inj ection of Methotrexate, since there was
still a concern that the pregnancy was ectopic. Later that
day, Chen agreed to have the injection.
a follow up visit on October 17, 2009, a transvaginal
ultrasound showed a very small, empty gestational sac in
Chen's uterus. On October 22, 2009, Chen underwent a
dilation and curettage at Beth Israel Medical Center.
Chen and her husband, suing derivatively, commenced this
action against, among others, Tse and Maimonides (hereinafter
together the defendants), alleging that they misdiagnosed
Chen with an ectopic pregnancy and administered Methotrexate,
which aborted the pregnancy. The action against a third
defendant was discontinued by stipulation dated May 24, 2011.
trial, the jury found that neither Maimonides nor Tse
departed from accepted standards of medical care by
recommending the administration of Methotrexate. Judgment was
entered in favor of the defendants and against the plaintiffs
dismissing the complaint, and the plaintiffs appeal, arguing
that they were deprived of a fair trial based on the conduct
of the trial court.
to the plaintiffs' contention, the trial court's
conduct in reprimanding the plaintiffs' attorney and
holding him in contempt for his behavior during trial did not
demonstrate bias against counsel (see Hoey v.
Rawlings,51 A.D.3d 868, 868-869). Furthermore, the
court did not unduly interfere with the presentation of the
case or indicate any partiality or bias (see Bielicki v
T.J. Bentey, Inc.,267 A.D.2d 266, 267; Givens v
Sinert,243 A.D.2d 443, 443-444). A trial court has
broad authority to control the courtroom, rule on the
admission of evidence, elicit and clarify testimony, expedite
the proceedings, and admonish counsel and witnesses when
necessary (see Campbell v Rogers & Wells, 218
A.D.2d 576, 579). Here, the contested comments and rulings by
the court were precipitated by the unprofessional, boorish,
and, at times contemptuous conduct of the plaintiffs'
attorney (see Hoey v Rawlings, 51 A.D.3d at 869),
were an appropriate attempt to clarify the testimony and
facilitate the progress of the trial (see McGuire v
McGuire,93 A.D.3d 701, 703-704; Bielicki v T.J.
Bentey, Inc., 267 A.D.2d at 267), or occurred outside