110 A.D.2d 284 | N.Y. App. Div. | 1985
OPINION OF THE COURT
On January 21,1979, plaintiff Shirley A. Bagailuk (hereinafter plaintiff) appeared at the emergency room of the Hamilton Avenue Hospital (hereinafter Hamilton) in the Village of Monticello, Sullivan County, complaining of difficulty in breathing and of severe abdominal pains. She was seen by Dr. Carl K. Heins, a surgeon, who prescribed medication and sent plaintiff home. Four days later, plaintiff arrived at Hamilton again complaining of severe stomach pains and difficulty in breathing. She was examined by defendant Dr. Henry W. Weiss (hereinafter defendant), a general practitioner, who admitted plaintiff into the hospital. On January 29, 1979, plaintiff’s gall bladder was removed by Heins, who was assisted by defendant. On February 2, 1979, during her recovery from the surgery, plaintiff was suffering from severe headaches and, on Heins’ order, she was transferred to Hamilton’s intensive care unit. Later that same day, plaintiff was intubated with an endotracheal tube at Heins’ direction in an attempt to assist her breathing, which had become strained.
Plaintiff then commenced this action against Heins, defendant and Hamilton alleging that by reason of their negligence, i.e., the prolonged presence of the endotracheal tube and failure to seek counsel from an otolaryngologist, she had suffered permanent personal injuries. A separate cause of action for loss of consortium was commenced by her husband. Prior to commencement of the trial of this action, plaintiffs settled with Heins and Hamilton for the sum of $100,000, and the case against defendant went forward. At the conclusion of the trial, the jury found that plaintiff had been damaged to the extent of $1,000,000 and her husband in the sum of $10,000. In apportioning fault, the jury found defendant 75% to blame and Heins 25% to blame.
Defendant appeals, seeking a reversal of the judgment, contending, inter alia, that he was denied a fair trial by the prejudicial and inflammatory remarks of plaintiffs’ counsel during his summation, that the jury apportionment of fault was against the weight of the evidence, that the verdict was excessive and that the trial court erred and abused its discretion in permitting certain rebuttal testimony.
Defendant’s claim of improper and prejudicial comments by plaintiffs’ attorney during his summation centers in large part on four separate series of comments. First, plaintiffs’ attorney proposed or suggested several large specific sums of money as awards for pain and suffering and further suggested the sum of $10,000 annually for the 26 years which plaintiff might have been expected to work as damages for her lost earning ability. We have recently found such conduct to be highly improper
On another occasion, plaintiffs’ counsel, in an obvious attempt to diminish or destroy the effect of the medical malpractice panel’s unanimous finding of no negligence, berated the defense for not calling a doctor who was on the panel as a witness, suggested to the jury that defendant and his counsel provided the panel with misleading information and accused defense counsel of attempting to deceive the jury during trial. Under the circumstances, these comments were improper, inflammatory and prejudicial.
On the fourth occasion, plaintiffs’ counsel accused defendant, who was not present during the early stages of the trial, of hiding in New York City so that plaintiffs’ counsel could not call him to the stand and so that defendant could testify after the other witnesses and “tailor his testimony and change his testimony to conform to what had been said in court”. The record shows that defendant, a Florida resident, sought a delay in the commencement of the trial because of alleged medical problems and, when denied the delay, proceeded to attend the trial. In our view, these remarks were highly inflammatory and prejudicial and without basis in the record.
The record reveals that defendant’s counsel made an immediate objection only as to that portion of plaintiffs’ counsel’s summation dealing with the subject of apportionment of fault, and plaintiffs contend that his failure to object to the other comments constituted a waiver and precludes our review. Plaintiffs’ counsel further maintains that if any of his comments were improper, they were cured by the trial court’s instructions.
In our view, plaintiffs’ counsel’s grasping for the minds of the jury through these inflammatory, prejudicial and erroneous comments so contaminated the trial at a critical stage as to deny defendant’s right to a fair trial. We conclude that the errors were fundamental and require a new trial in the interest of justice and the exercise of discretion (see, Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794, 796; Rodriguez v Cato, 63 AD2d 922). This determination renders unnecessary any discussion of the other claimed errors.
Mahoney, P.J., Casey, Yesawich, Jr., and Harvey, JJ., concur.
Judgment reversed, on the law and the facts, and matter remitted to Trial Term for a new trial, with costs to abide the event.