Goff v. Paul
2004 N.Y. Slip Op. 04888
N.Y.A.D. 4 Dept. 2004.
Decided on June 14, 2004
778
N.Y.S.2d 609
This opinion is uncorrected
and subject to revision before publication in the
printed Official Reports.
*1 H.
DAVID
GOFF,
PLAINTIFF-APPELLANT,
v.
STEPHEN
E. PAUL, M.D., DEFENDANT-RESPONDENT, ET AL., DEFENDANT. (APPEAL NO. 1.)
637
CA 03-02380
Supreme
Court,
Appellate
Division,
Fourth Department, New York
Decided on June 14, 2004
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND HAYES, JJ.
Appeal from a judgment of the Supreme Court, Steuben County (Joseph W.
Latham, A.J.), entered January 9, 2003. The judgment was entered, upon
a jury verdict, dismissing the complaint against defendant Stephen E. Paul,
M.D. in a medical malpractice action.
APPEARANCES OF COUNSEL
FARACI & LANGE, LLP, ROCHESTER (JOSEPH A. REGAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ASWAD & INGRAHAM, BINGHAMTON (CHARLES O. INGRAHAM OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
OPINION
It is hereby ORDERED that the judgment so appealed from be and the same
hereby is affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action alleging
that Stephen E. Paul, M.D. (defendant) negligently performed two back surgeries
on him. Plaintiff did not call defendant as a witness in his direct case,
and defendant testified as a fact witness for the defense. Although defendant's
attorney did not elicit any opinion testimony from defendant during his
direct examination, plaintiff nevertheless sought to elicit opinion testimony
from defendant on cross-examination in order to impeach his testimony.
Plaintiff sought to question defendant with respect to the suspension of
his privileges at a hospital, a peer review study that was critical of
his work, and his prior alcohol dependency. It was undisputed, however,
that defendant was licensed to practice medicine at the time he performed
plaintiff's surgeries, and plaintiff was allowed to elicit from defendant
testimony that he ceased practicing medicine one month after plaintiff's
second surgery. In addition, we note that plaintiff conceded that the hospital
suspension and peer review study did not pertain to the surgeries performed
on plaintiff. Plaintiff also conceded that there was no proof of alcohol
abuse at the time defendant performed plaintiff's surgeries.
"The
scope and extent of cross-examination are within the broad discretion of
the trial court" (Holmes
v Weissman, 251 AD2d 1078, 1079; see Eagle
Pet Serv. Co. v Pacific Empls. Ins. Co., 175
AD2d 471, 472, lv denied 79
NY2d 753), and we conclude that Supreme Court did not abuse its discretion
in agreeing with defendant that plaintiff was exceeding the scope of direct
examination in his cross-examination of defendant and in denying plaintiff's
request to reopen plaintiff's case to call defendant as an expert witness.
In addition, the court had the discretion to *2 limit
plaintiff's inquiry into collateral matters on cross-examination (see Feldsberg
v Nitschke, 49 NY2d 636, 643, rearg denied 50
NY2d 1059; Eagle
Pet Serv. Co., 175 AD2d at 472).
All concur except Gorski, J., who dissents and votes to reverse in accordance
with the following Memorandum: I respectfully dissent. In my view, Supreme
Court erred in limiting plaintiff's cross-examination of Stephen E. Paul,
M.D. (defendant), and thus plaintiff is entitled to a new trial. Plaintiff
alleged in this medical malpractice action that, inter alia, defendant
was negligent in performing a lumbar laminectomy on plaintiff. During plaintiff's
cross-examination of defendant, the court refused to allow plaintiff to
ask defendant questions that called for an expert opinion regarding the
standard of care required in the surgery he performed on plaintiff. In
restricting plaintiff's cross-examination
of defendant, the court agreed with defendant that plaintiff could not
ask such "opinion" questions because they exceeded the scope of the direct
examination of defendant, which was limited to matters of fact concerning
plaintiff's surgery. The court also refused to permit plaintiff to reopen
his case in order to call defendant as a witness for the purpose of asking
him "opinion" questions. In addition, the court restricted plaintiff from
fully exploring the status of defendant's medical license when, in fact,
defendant was not licensed to practice medicine at the time of his deposition
or at the time of trial.
A plaintiff in a medical malpractice action "should be permitted to examine
his doctor-opponent as fully and freely as other qualified witnesses, and
... such testimony may include expert opinion" (Gilly
v City of New York, 69 NY2d 509, 511). A defendant physician is
not "an independent, disinterested witness" and, by virtue of his existing
association with the case, may be compelled to testify as an expert for
the plaintiff (id.). "[T]he doctor's knowledge of the proper medical
practice and his possible awareness of his deviation from that standard
in the particular case are, in a real sense, as much matters of 'fact'
as are the diagnosis and examination he made or the treatment upon which
he settled" (McDermott
v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 27). By allowing
the plaintiff to examine a defendant physician
with respect to both matters of fact and expert opinion, "the courts do
no more than conform to the obvious purpose underlying the adverse-party-witness
rule. That purpose, of course, 'is to permit the production in each case
of all pertinent and relevant evidence that is available from the
parties to the action"' (id. [emphasis added]).
I know of no case law or statutory authority supporting the proposition
that plaintiff was required to call defendant as a witness in order to
entitle plaintiff to question him concerning his understanding of the standard
of care applicable to the surgery giving rise to the medical malpractice
action. Indeed, based on McDermott, the opinion testimony of defendant
concerning that standard of care is a "matter[] of 'fact"'and thus, contrary
to the determination of the court herein, such questioning is not outside
the scope of the direct examination on matters of fact conducted by defendant's
attorney (id.).
Here, plaintiff was not seeking to elicit opinion testimony to establish
his prima facie case of medical malpractice (see id.). Rather, he
was seeking to cross-examine defendant with respect to matters related
to his credibility and competency, and he was entitled to do so. Questions
relating to the applicable standard of medical care and defendant's adherence
to it, in light of the earlier medical opinion testimony of plaintiff's
expert, merely sought to test defendant's
credibility on medical knowledge related to the very surgery involved herein.
Because defendant's credibility or lack thereof is critical to the determination
of liability in this case, it cannot be said that the court's improper
restriction of plaintiff's cross-examination of defendant is harmless error.
Although I agree with the majority that the court properly refused to permit
plaintiff to question defendant with respect to the peer review study and
his alcoholism, I nevertheless conclude that plaintiff's questioning of
defendant concerning his credentials and *3 licensing
history was permissible because it was designed to test defendant's credibility
and, in my view, such questioning was improperly restricted (see Alonso
v Powers, 220 AD2d 311). I therefore would reverse the judgment
in each appeal and grant plaintiff a new trial.
Entered: June 14, 2004
JoAnn M. Wahl
Clerk of the Court
Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.
N.Y.A.D. 4 Dept. 2004.
Goff
v
Paul
END OF DOCUMENT
Copr. (C) West 2004 No Claim to Orig. U.S. Govt. Works