MEDICAL MALPRACTICE CASE DISMISSAL AFTER JURY SELECTED BUT BEFORE TRIAL STARTED WAS AN ABUSE OF DISCRETION

Court: Supreme Court, Appellate Division, First Department, New York.

Case: Nancy Botwinik v. Michael D. Moseson, M.D.

Date: June 9, 2011

Background: In medical malpractice action, the Supreme Court, Nassau County, F. Dana Winslow, J., granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss the medical malpractice action. Plaintiff appealed.

Comment: this fight was about whether plaintiff's intent to use a nurse as a medical malpractice expert as to "informed consent" was to be permitted. Did the nurse have the requisite expertise to testify as an expert witness at trial? The trial judge acted hastily and dismissed plaintiff medical malpractice victim's case. He should have given plaintiff's attorney time to switch to a medical doctor expert if necessary and not dismiss the case.

Holding: The Supreme Court, Appellate Division, held that trial court abused its discretion by granting dismissal of plaintiff's medical malpractice action based solely on lack of informed consent. Reversed.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)

Judgment, Supreme Court, Nassau County (F. Dana Winslow, J.), entered on or about September 28, 2009, in favor of defendants, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about May 18, 2009, which granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss this medical malpractice action, unanimously reversed, on the law without costs, the motion denied, and the complaint reinstated.

In making their oral motion, after the jury was empaneled and before opening arguments, defendants argued that plaintiff's proposed expert, though a highly qualified registered nurse, lacked the necessary qualifications to give a medical opinion as to the requisite standard of informed consent (see CPLR 4401-a; Orphan v. Pilnik, 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010] ).

In opposition, plaintiff relied partially upon the deposition testimony of the defendant doctor which was not before the court, and the CPLR 3101(d) disclosure of the nurse's opinion. In addition, plaintiff orally cross-moved to substitute the testimony of a medical doctor for the testimony of the nurse, if the court ruled that plaintiff's offer was inadequate to establish the requisite prima facie claim. Apparently the court gave plaintiff's counsel a break to research the issue of the nurse's qualification to give an opinion under New York law, but did not read the deposition testimony. The court granted defendants' in limine motion and sub silentio denied plaintiff's.

CPLR 4401-a states that "[a] motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent" (emphasis added).

The grant of dismissal pursuant to CPLR 4401-a was an abuse of discretion, given that the timing of defendants' oral application was not at the end of plaintiff's case, the record on which the court ruled was sparse and the court failed to consider plaintiff's offer to substitute a medical doctor's opinion for the nurse's (see Jean-Louis v. City of New York, 60 A.D.3d 737, 738, 875 N.Y.S.2d 195 [2009] [court erred in dismissing the complaint before the plaintiff had completed her proof]; Greenbaum v. Hershman, 31 A.D.3d 607, 818 N.Y.S.2d 606 [2006] ["plaintiff should have been afforded the opportunity to conclude her case" and present expert medical testimony regarding the qualitative insufficiency of her consent] ).

Because defendants chose to move orally as opposed to making a formal motion on notice, plaintiff had little opportunity to develop a full record and be heard. Moreover, courts favor disposition of cases on the merits rather than on oral application made after a jury is impaneled and waiting (see Murray v. Brookhaven Mem. Hosp. Med. Ctr., 73 A.D.3d 878, 879, 902 N.Y.S.2d 576 [2010]; Williams v. Naylor, 64 A.D.3d 588, 589, 886 N.Y.S.2d 30 [2009] ).

Accordingly, we reverse, deny defendants' motion and reinstate the complaint.