A Queens judge who cut short an attorney’s opening statement in a medical malpractice trial and then threw out the case has been overruled by a Brooklyn appellate court that criticized his “improper conduct” in the matter and assigned the case to another judge.
Faulting Queens Supreme Court Justice Duane Hart (See Profile) for his interruption and sua sponte dismissal, the Appellate Division, Second Department, on Wednesday said Hart’s actions were “based upon pure conjecture and surmise, without any legal basis, and absent any evidentiary proof.”
Justices Reinaldo Rivera (See Profile), Cheryl Chambers (See Profile), Leonard Austin (See Profile) and Colleen Duffy (See Profile) unanimously decided Fudge v. North Shore- Long Island Jewish Health Services Plainview and Manhasset Hospitals, 2013-06042. The case was submitted for decision March 27.
The litigation stems from a woman’s November 2008 trip to North Shore-Long Island Jewish Health Services Plainview Hospital after days of headaches, dizziness and vomiting. The woman, who was 30, had been previously treated for ulcerative colitis.
She was treated by hospital personnel, her primary care physician and her gastroenterologists, Drs. Peter Pervil and Charles Farber.
About a day after her admittance and transfer to a Manhasset hospital, she died of a brain hemorrhage.
Her husband, Robert Fudge Jr., sued the hospitals, primary care physician and gastroenterologists.
In June 2012, Queens Supreme Court Justice Peter O’Donoghue denied defendants’ summary judgment motion, citing factual questions.
For instance, O’Donoghue said it was an issue of fact whether Farber departed from accepted standards when not including a neurological pathology in his diagnosis that would have referred the woman for a neurological consultation.
Likewise, O’Donoghue said there were factual questions about whether Pervil departed from accepted standards by failing to thoroughly review the woman’s chart, which “caused him to fail to appreciate the neurological component of decedent’s symptoms.”
Before trial, the hospital and the primary care physician settled for $920,000, leaving the gastroenterologists in the case.
The matter was then assigned to Hart for a jury trial, which was expected to last about two weeks.
On Jan. 31, 2013, Gerard Lucciola of Rosato & Lucciola in Manhattan had started his opening statement against the gastroenterologists, when Hart stopped him and asked the jury to leave.
According to a transcript, Hart questioned why Lucciola focused on the gastroenterologists when, he said, it was the primary care physician’s job to recommend neurological procedures.
At one point in the colloquy, Lucciola told Hart he couldn’t “say that it wasn’t [the gastroenterologists'] job.”
“I can,” said Hart.
“You can,” the attorney responded. “We are having a debate about it. You can do anything you like. What I am saying, simply because somebody is called in to do a job, they can’t ignore something else.”
Later on in the exchange, Hart told Lucciola, “I just gave you a sneak preview. If while they are doing work consistent with being gastroenterologists, they are supposed to do a brain scan, I am tossing the case out.”
Lucciola responded, “I am going to say to you, judge, there is no sneak preview. That’s the only case we have here.”
After further exchange and an off-the-record conversation, Hart called the jury back to the courtroom.
“Listening to counselor’s opening, I didn’t want to postpone the obvious,” he said.
He said Lucciola offered a “great opening” against the hospitals and primary care physician, but they were not in the case and the opening “didn’t do anything as against” the gastroenterologists.
Hart said the pair were doing work “consistent with gastroenterology, which has nothing to do with ordering a brain scan, different body part.”
He dismissed the case with prejudice and Fudge appealed.
In court papers, Paul Marber of Rosato & Lucciola, who represented Fudge on appeal, pointed to case law on the circumstances when a complaint’s dismissal is justified after a plaintiff’s opening statement.
Those criteria are: when the plaintiff states no cause of action, the cause of action is “conclusively defeated” by a defense or conceded fact or some admission or statement “completely compromised” the case.
None of those circumstances existed here, said Marber, who requested the case be assigned to another judge.
He noted that in the summary judgment motion before O’Donoghue, the gastroenterologists had a “full and fair opportunity to litigate the very issues of merit upon which Justice Hart dismissed plaintiff’s case.”
Florence Gibbons and Louise Feffer of Rogak & Gibbons in Uniondale, who represented Pervil and Farber, the gastroenterologists, argued that Hart was well within his discretion to nip the case in the bud.
The doctors had no duty to “go beyond the field of specialty to actually find any other conditions,” they said, adding that Hart made his conclusions that “there was no duty, as a matter of law, and not due to questions of fact.”
But the appellate panel noted that the incomplete opening statement did not meet any of the criteria to dismiss a case after the plaintiff’s opening.
Moreover, Hart breached the doctrine of law of the case “by completely disregarding a prior order, issued by a justice of coordinate jurisdiction, that had concluded that triable issues of fact existed.”
Lucciola declined to comment.