Janice Mazella,, Respondent,v.William Beals, M.D., Appellant, et al., Defendant.

Brief

N.Y.June 2, 2016

To be Argued by: KEVIN T. HUNT, ESQ. (Time Requested: 30 Minutes) APL 2015-00077 Onondaga County Clerk’s Index No. 2010-3387 Appellate Division–Fourth Department Docket Nos. CA 13-01419, CA 13-01420, CA 13-01421 Court of Appeals of the State of New York JANICE MAZELLA, As Administratrix of the Estate of Joseph Mazella, Deceased, Plaintiff-Respondent, – against – WILLIAM BEALS, M.D., Defendant-Appellant, – and – ELISABETH MASHINIC, M.D., Defendant. (Appeals Nos. 1, 2, 3) BRIEF FOR DEFENDANT-APPELLANT Of Counsel: MYRA I. PACKMAN, ESQ. GALE GALE & HUNT, LLC Attorneys for Defendant-Appellant P.O. Box 6527 Syracuse, New York 13217 Tel.: (315) 637-3663 Fax: (315) 637-3667 Appellate Counsel: MEISELMAN, PACKMAN, NEALON, SCIALABBA & BAKER P.C. 1311 Mamaroneck Avenue White Plains, New York 10605 Tel.: (914) 517-5000 Fax: (914) 517-5055 Date Completed: May 28, 2015 -i- JURISDICTION STATEMENT PURSUANT TO §500.13(a) OF THE RULES OF THE COURT OF APPEALS The Court of Appeals has jurisdiction to entertain defendant-appellant William Beals, M.D.’s appeal and to review the questions raised herein pursuant to CPLR §5602(a)(1)(i) and the Order of this Court dated and entered on March 31, 2015 granting defendant-appellant permission to appeal to this Court. (2537- 2538) (Numbers in parenthesis refer to the pages in the Record on Appeal.) The appeal is from an Order of the Appellate Division, Fourth Judicial Department dated and entered on November 21, 2014, (2539-2545) which affirmed the final amended judgment entered against defendant-appellant on May 21, 2013. (38a- 40a) This wrongful death action was commenced against Dr. Beals and co- defendant Elisabeth Mashinic M.D. in June 2010. (Dr. Mashinic is no longer a party to this action.) Trial commenced on November 7, 2012 before the Honorable John C. Cherundolo, and concluded on November 20, 2012. At the conclusion of the plaintiff’s case, defendant moved for a non-suit and dismissal of the case for plaintiff’s failure to make out a prima facie case, which motion was denied by the Court. (861-864) The same motion was renewed upon the close of the case and, again, was denied. (1200) -ii- On November 20, 2012, the jury returned a verdict in favor of plaintiff as against Dr. Beals only, finding that both Dr. Beals and Dr. Mashinic were negligent, but that Dr. Beals’ negligence was the sole cause of the decedent’s death. The jury awarded damages of $1,200,000. The issue of plaintiff’s failure to prove proximate caused is raised as a question before this Court and has been preserved for appeal. By Notice of Motion dated December 19, 2012 (2447-2472), defendant moved for an Order to set aside the verdict on the grounds that inter alia: (1) the evidence adduced at trial was legally insufficient to support the jury’s verdict requiring that the judgment be set aside and the matter dismissed; (2) that the verdict was contrary to the weight of the evidence; and (3) the defendant-appellant was denied a fair trial due to the introduction into evidence of the defendant- appellant’s unredacted, highly prejudicial, Department of Health Office of Professional Medical Conduct (OPMC) Consent Agreement and Order dated February 14, 2012 (415a-430a) which did not contain a finding or consent agreement as to the plaintiff herein, but which dealt with twelve (12) other, unrelated patients of Dr. Beals. The question of whether Dr. Beals was denied a fair trial due to the plaintiff’s use of the OPMC document during trial is raised before this Court and has been preserved for appeal. Additionally, prior to trial, -iii- defendant-appellant had moved to preclude the use of the document by plaintiff during trial (1367-1374), which motion was denied by the trial court. Defendant-appellant also asserted in the post-trial motion that he was denied a fair trial due to the admission into evidence of a highly prejudicial and gruesome photo of the decedent at the time of his death. (1863) The issue is preserved for appeal as Dr. Beals had objected during trial to the introduction of the photo (38- 40), which objection was renewed in the post-trial motion referenced above. Defendant-appellant also raises the question of whether it was an error of law for the trial court to have submitted a general verdict sheet to the jury rather than a special verdict sheet, in light of the fact that plaintiff alleged and submitted evidence on three separate theories of liability. The issue of the jury verdict sheet was raised during the charge conference (1206-1207), at which time defendant submitted a proposed jury verdict sheet that enunciated separate and distinct interrogatories for each theory of liability. (2463-2472) The issue was also raised in the post-trial motion referenced above and has thus been preserved for appellate review by this Court. All of the issues set forth in this appeal have been raised before the Appellate Division. By Order dated March 18, 2013, Supreme Court denied defendant- appellant’s motion to set aside the verdict. (5a-15a) Judgment was entered on -iv- April 29, 2013, in favor of plaintiff in the amount of $1,474,161.34. (19a-21a) On May 21, 2013, an amended judgment dated May 14, 2013 was entered in favor of plaintiff, due to a typographical error in the initial judgment. (38a-40a) The appeal to the Appellate Division, Fourth Department ensued, resulting in the Memorandum and Order set forth above. -v- TABLE OF CONTENTS Page JURISDICTION STATEMENT PURSUANT TO §500.13(a) OF THE RULES OF THE COURT OF APPEALS . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii PRELIMINARY STATEMENT AND ARGUMENT SUMMARY . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS LEGALLY INSUFFICIENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 POINT III THE VERDICT SHOULD BE SET ASIDE AS DEFENDANT WAS DENIED A FAIR TRIAL DUE TO CUMULATIVE ERRORS OF THE TRIAL COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 A. The Trial Court Erred In Permitting an OPMC Consent Agreement and Order To Be Admitted . . . . . . . . . . . . . . . . . 39 -vi- TABLE OF CONTENTS (Continued) Page B. The Trial Court Erred In Permitting A Gruesome Photograph Of The Decedent’s Body To Be Admitted . . . . . 54 POINT IV THE TRIAL COURT ERRED IN CHARGING THE JURY TO RENDER A GENERAL VERDICT AS TO BOTH LIABILITY AND DAMAGES AND IN DENYING DEFENDANT’S REQUEST FOR A SPECIAL VERDICT SHEET WITH INDIVIDUAL INTERROGATORIES . . . . . . 58 A. Verdict Sheet As To Liability . . . . . . . . . . . . . . . . . . . . . . . . 62 B. Verdict Sheet As To Damages . . . . . . . . . . . . . . . . . . . . . . . . 64 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 -vii- TABLE OF AUTHORITIES Cases Page Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Baragano v. Vaynshelbaum, 2005 N.Y. Slip OP 30465 (Sup. Ct. New York County 2005) . . . . . . . . . . . 42, 43 Blanchard v. Lifegear, Inc., 45 A.D.3d 1258 (4th Dept., 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Bumpurs v. New York City Housing Authority, 139 A.D.2d 438 (1st Dept., 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Chase v. Cayuga Medical Center at Ithaca, 2 A.D.3d 990 (3rd Dept., 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Cipriano v. Ho, 29 Misc.3d 952 (Kings County 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493; (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 33 Coopersmith v. Gold, 223 A.D.2d 572 (2d Dep't 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Davis v. Caldwell, 54 N.Y.2d 176 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 62 DeLong v. County of Erie, 89 A.D.2d 376 (4th Dept., 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68 Dentes v. Mauser, 91 A.D.3d 1143 (3rd Dept., 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 -viii- TABLE OF AUTHORITIES (Continued) Cases Page Derdiarian v. Felix Contracting Co., 51 N.Y.2d 308 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24 Didocha v. State of New York, 54 A.D.2d 786 (3rd Dept., 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Dooley v. Columbia Presbyterian Medical Center, 2009 WL 2381331 (SDNY, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Douglas v. Gibson, 218 A.D.2d 856 (3rd Dept., 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Duffy v. Fear, 121 A.D.2d 928 (1st Dept., 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Farrar v. Brooklyn Union Gas Co., 134 A.D.2d 31 (2nd Dept., 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Foster-Sturrup v. Long, 95 AD3d 726, 727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Friscti v. State of New York,, 35 A.D.2d 764 (3rd Dept., 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Geffner v. North Shore University Hosp., 57 AD3d 839, 842 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Gonzalez v. New York City Housing Authority, 77 N.Y.2d 663 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 -ix- TABLE OF AUTHORITIES (Continued) Cases Page Green v. Downs, 27 N.Y.2d 205 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Harvey v. Mazal American Partners, 79 N.Y.2d 218 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 56 Jordan v. Glenns Falls Hospital, 261 A.D.2d 666 (3rd Dept., 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 45 Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126 (4th Dept., 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Karnbach v. Bould, 24 A.D.2d 600 (2nd Dept., 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Kenigsberg v. Cohn, 117 A.D.2d 652 (2nd Dept., 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 LaPosta v. New York City Transit Authority, 32 A.D.2d 964 (2nd Dept., 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Levin v. Carbone, 277 A.D.2d 951 (4th Dept., 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Liff v. Schildkrout, 49 N.Y.2d 622 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Loehner v. Simons, 239 A.D.2d 468 (2nd Dept., 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Lolik v. Big V. Supermarkets, 86 N.Y.2d 744 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 -x- TABLE OF AUTHORITIES (Continued) Cases Page Lynch v. Bay Ridge Obstetrical, 72 N.Y.2d 632 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Maraziti v. Weber, 185 Misc. 2d 624 (Dutchess County 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Martinez v. Lazaroff, 48 N.Y.2d 819 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 Matott v. Ward, 48 N.Y.2d 455 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Estate of Brandon, 55 N.Y.2d 206 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 46 Matter of Evanchuk, 145 A.D.2d 559 (2nd Dept.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Mertsaris v. 73rd Corp., 105 A.D.2d 67 (2nd Dept., 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Papa v. City of New York, 194 A.D.2d 527 (2nd Dept., 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Parilis v. Feinstein, 49 N.Y.2d 984 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Wright, 38 A.D.3d 1004 (3rd Dept., 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Richardson v. Lutheran Medical Center, 70 A.D.2d 933 (2nd Dept., 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 -xi- TABLE OF AUTHORITIES (Continued) Cases Page Rivera v. City of New York, 11 N.Y.2d 856 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Rossignol v. Silvernail, 146 A.D.2d 907 (3rd Dept., 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Rosso v. Beer Garden, Inc., 12 A.D.3d 152 (1st Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Russo v. Rifkin, 113 A.D.2d 570 (2nd Dept., 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Salazar v. B.R. Fries and Associates, 251 A.D.2d 210 (1st Dept., 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Schwartz v. Maimonides Hospital Center, 48 A.D.2d 709 (2nd Dept., 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Steidel v. County of Nassau, 182 A.D.2d 809 (2nd Dept.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Stewart v. Olean Med. Group, P.C., 17 A.D.3d 1094 (4th Dept., 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Tilley v. Hudson River R.R. Co., 29 N.Y. 252 (1864) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Torres v. Ashmawy, 24 Misc.3d 506 (Orange City. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 -xii- TABLE OF AUTHORITIES (Continued) Page Statutes CPLR Article 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CPLR 4404(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 34 CPLR 5501(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 EPTL 5-4.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65, 66 Public Health Law § 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 PRELIMINARY STATEMENT AND ARGUMENT SUMMARY In this medical malpractice action, Defendant-Appellant William Beals, M.D. appeals from the Order of the Appellate Division, Fourth Department which affirmed the Amended Judgment entered against him, over the long and detailed dissent of the Honorable Nancy E. Smith (2539-2454). Plaintiff failed to make out a prima facie case of medical malpractice rendering the verdict legally insufficient; the verdict is against the weight of the evidence and defendant was denied a fair trial through numerous and cumulative judicial errors committed during and after the trial. This medical malpractice case alleges that the manner in which Dr. Beals provided psychiatric treatment to the plaintiff’s decedent, Joseph Mazella was a departure from the standard of care and that said departure was the proximate cause of the plaintiff’s decedent’s suicide. At trial plaintiff asserted three theories of liability against Dr. Beals: (1) Dr. Beals’ failure to see Mr. Mazella in person for approximately ten years while renewing his prescription for Paxil was a substantial factor in causing Mr. Mazella’s suicide; (2) Dr. Beals’ changes to Mr. Mazella’s medications over the phone on August 9 and 10, 2009 (to increase Paxil to 40mg and add 2.5mg of Zyprexa, and to increase Zyprexa to 5mg, respectively) were substantial factors in causing Mr. Mazella’s suicide; and (3) Dr. Beals’ -2- conduct at plaintiff’s last office visit on August 17, 2009 was a substantial factor in causing Mr. Mazella’s suicide. Plaintiff failed to prove and make a prima facie showing that any of Dr. Beals’ actions were the proximate cause of the decedent’s death, making the case legally insufficient to stand and requiring the action to be dismissed. While plaintiff’s expert offered testimony that Dr. Beals’ actions were substantial factors in plaintiff’s suicide, he completely ignored the fact that the decedent did not commit suicide until twenty-six days after his last contact with Dr. Beals and completely ignored the overwhelming evidence of the numerous superseding events that severed any causal connection between Dr. Beals’ actions and the death of the decedent. Specifically, as more fully set forth in the Statement of Facts herein, plaintiff’s expert ignored the fact that the decedent, after the end of his treatment with Dr. Beals: • had two overnight stays in a psychiatric facility; • twice refused admission for inpatient psychiatric care; • had an eight day inpatient admission in another psychiatric facility; • attempted to commit suicide while a psychiatric inpatient; • was seen by co-defendant, psychiatrist, Elisabeth Mashinic, M.D. six times during which time plaintiff’s medications were altered; -3- • was discharged by co-defendant psychiatrist Dr. Mashinic from the eight day admission in a psychiatric facility on August 27, 2009 upon Dr. Mashinic’s determination that, inter alia, plaintiff was not suicidal; • was seen by psychiatrist, David Strickland, M.D. two times; • was seen one time by a social worker and one time by a therapist at a different psychiatric facility; • was seen by and had contact two times with his primary care physician regarding his psychiatric medications; • was seen one time by another private therapist; and • had several changes of psychiatric medications made by several varying health care providers. Despite the numerous superseding and intervening events that took place after the decedent’s last contact with Dr. Beals, the jury still erroneously found that Dr. Beals’ actions were the sole cause of the suicide and awarded a total of $1,200,000 to plaintiff. (2438) The inconsistency of the verdict is highlighted by the fact that the jury determined that, although the co-defendant, Elisabeth Mashinic, M.D., the psychiatrist who treated the decedent during his subsequent eight day psychiatric hospital admission and who discharged him from said -4- facility, was negligent in her treatment, they still found that her negligence had nothing to do with the decedent’s suicide. (2458-2459) Dr. Beals was denied a fair trial due to the cumulative errors of the Court. Prior to the trial of this matter, Dr. Beals moved to preclude the introduction of a Consent Agreement and Order entered into by Dr. Beals with the Office of Professional Medical Conduct (“OPMC”) (78a-94a, 415a-430a). The OPMC had charged defendant with negligence with relation to 13 patients, of which decedent was one. While Dr. Beals agreed to not contest the charges as to 12 of the 13 patients, he specifically did not make any agreement as to the decedent and there was no finding ever made by OPMC as to Dr. Beals’ treatment and care of decedent. Without issuing a written decision, the Court committed reversible error by determining that the OPMC findings, pertaining to 12 patients other than the decedent, would be admissible during the course of the trial, thus permitting the jury to be influenced and prejudiced by Dr. Beals’ treatment of patients other than plaintiff herein. It was further error for the trial court to have allowed into evidence, over Dr. Beals’ continuous objection, a gruesome photograph of the decedent lying face down in a pool of his own blood after he violently and repeatedly stabbed himself to death. (38-40, 120-121, 1863) The first responder to the scene -5- testified, in detail, about the scene of the decedent’s suicide on September 12, 2009. (120) Permitting this inflammatory photograph of the scene of decedent’s suicide into evidence was cumulative evidence in nature, was of no probative value, was intended to inflame the passions of the jury, served to unnecessarily increase the emotional appeal to the jury and was unfairly prejudicial to Dr. Beals. The admission of the photograph, along with the OPMC Consent Agreement and Order, served as cumulative error and denied defendant a fair trial. During the charge conference, Dr. Beals requested that the jury charge and verdict sheet contain separate and distinct interrogatories as to each of the alleged deviations put forth by plaintiff, the issue of proximate cause as to each departure, and as to the issue of damages. The Court denied defendant’s request and ordered that the jury charge and verdict sheet contain only one general interrogatory for all of the alleged deviations, one general interrogatory for proximate cause and one general interrogatory for damages. (1206-1207, 2463-2472) By using general interrogatories, Dr. Beals was prejudiced, as the jury was not permitted to consider each alleged deviation separately, was not permitted to consider the issue of proximate cause as to each of the alleged deviations and was not permitted to consider each separate component of damages. Instead, they were forced to decide this matter in a vacuum based upon one broad and general -6- accusation. Likewise, it is impossible from the general verdict returned by the jury to determine if the verdict was not predicated on a finding in plaintiff’s favor on one of the theories of departure or proximate cause which, for lack of supporting proof, should not have been submitted to it. Furthermore, the use of a general verdict sheet under the circumstances herein is reversible error as it makes it impossible for an appellate court to determine the validity of the verdict. The use of a general verdict sheet also made it impossible for the amount of the final judgment in this matter to be appropriately calculated. Due to the failure to use specific, itemized interrogatories as to damages, the Court and the parties, in calculating the final judgment, were compelled to speculate on what the jury intended, leading to completely inconsistent results and an incorrect judgment being entered by the Court. Based upon these cumulative errors during the trial of this matter and thereafter, Dr. Beals was denied a fair trial; the verdict was legally insufficient and against the weight of the evidence, and an incorrect judgment entered. The Order of the Appellate Division and the Amended Judgment should be reversed and the matter dismissed, or, in the alternative, a new trial ordered. -7- STATEMENT OF FACTS Plaintiff’s decedent, Joseph Mazella, 51 years old, was married and the father of three children aged 18, 23, and 25 at the time of his death. The action herein is brought by the duly appointed administratrix, Janice Mazella, the decedent’s wife. Plaintiff first presented to defendant William Beals, M.D., a physician who is Board Certified in Family Medicine and in Addiction Medicine (937), on October 26, 1993 (938) with complaints of anxiety, nervousness and restlessness. (65a, 940, 1878-1879) Mr. Mazella had chronic problems with both anxiety and depression. (939, 1878-1879) He reported having two prior episodes of depression and anxiety in the 1980s and early in the 1990s, prior to his seeing Dr. Beals. (941) Mr. Mazella further reported that he had seen his primary care physician, Peter Becker, M.D., four or five days prior to the October 26, 1993 appointment with Dr. Beals and was started on Prozac (an antidepressant) and Klonopin (an anti-anxiety medication) by Dr. Becker. (941, 1878-1879) He also reported that he had longstanding thoughts of suicide, but claimed that he would never act on them due to his children and his wife. (944, 1878-1879) Dr. Beals’ diagnosis included major depression and anxiety disorder. (945, 1878-1879) Dr. Beals replaced the Prozac, which had been prescribed by Dr. -8- Becker, with Paxil 20mg to better treat both the depression and the anxiety and instructed Mr. Mazella to taper himself off of the Klonopin. (946, 1878-1879) Mr. Mazella was also referred to a therapist. (1878-1879) Dr. Beals closely monitored Mr. Mazella’s condition and use of the Paxil by continuing to see and speak to him on a regular basis. (949, 961, 962, 963, 1876- 1879) By February 23, 1994, Mr. Mazella reported that he was much better, not as depressed, was more active and had decreased levels of anxiety. (966, 1877) It was agreed that Mr. Mazella would continue the Paxil and that they would re-assess in April 1994 to determine whether the drug could be discontinued or whether he would need long term therapy. (966, 1877) During a telephone conversation between Mr. Mazella and Dr. Beals on April 13, 1994, it was decided that the Paxil would be slowly tapered off, with the medication being stopped completely on May 15, 1994. Mr. Mazella was directed to call Dr. Beals with any problems or questions. (969, 1877) Mr. Mazella tapered himself off of the Paxil as directed, did well and had no further contact with Dr. Beals until four years later in April 1998. (969) On April 7, 1998, Dr. Beals received a telephone call from Dr. Becker, Mr. Mazella’s primary care physician, requesting that he see Mr. Mazella that day. (969-970, 1892) When Dr. Beals saw Mr. Mazella later that afternoon, he -9- complained that all of the symptoms of depression and anxiety from 1993 and 1994 had returned. He reported that Dr. Becker had started him back on Paxil 20mg nine days earlier. (971, 1892-1893) Dr. Beals increased the Paxil to 40mg (20mg twice per day) and, again, referred Mr. Mazella for therapy which he had not yet done. (973, 1892-1893) Over the next year and a half, Dr. Beals closely monitored Mr. Mazella’s condition and regularly adjusted the dosage of the Paxil until the appropriate dosage was finalized in November 1999. (970-990, 1888-1893) By November 1999, Mr. Mazella was consistently doing well on Paxil 20mg and it was determined that he would continue at this level indefinitely. (990-991) Dr. Beals continued to have regular telephone communications with Mr. Mazella through 2009, each time that the Paxil prescription needed to be refilled. (992) Between 1999 and August 2009, the decedent did very well on the Paxil without any further incidence of depression, anxiety and/or obsessiveness. (668-673) Plaintiff’s own psychiatric expert, Peter Breggin, M.D. testified that during the years from 2000- 2009, the decedent “was in remission” and was “doing well”. (288-289) By his own testimony, plaintiff’s expert stated that there was no way to know the effect of the Paxil on the decedent’s condition during that ten year period of time from 2000-2009. (289) -10- On August 9, 2009, Dr. Beals, while on vacation out of town, received a message that Mr. Mazella had called his service. Dr. Beals immediately returned the call and spoke to Mr. Mazella. (1001) Mr. Mazella told Dr. Beals of a return of his anxiety, an increase in obsessive thoughts and difficulty sleeping. He denied any thoughts of suicide at that time. (1002, 1886) Given his sleep disturbance and the level of anxiety being complained of, Dr. Beals instructed Mr. Mazella to increase the Paxil from 20mg to 40mg, the dose that he had taken in 1998 that had helped, and to add Zyprexa 2.5mg to help with his sleep. (1002- 1003, 1886) Mr. Mazella was further instructed to call Dr. Beals the next day to further assess his condition. (1003, 1886) On August 10, 2009, Dr. Beals spoke to both Mr. and Mrs. Mazella. It was reported that Mr. Mazella was not feeling well, was tired, still did not sleep well that night and was still anxious. Dr. Beals increased the Zyprexa to 5mg that night and they were to speak again the next day. (1006-1007, 1886-1887) On August 11, 2009, Dr. Beals received a telephone call from Mrs. Mazella who reported that Mr. Mazella’s heart was racing and that she was afraid that he was going to have a heart attack. They agreed that she should take Mr. Mazella to the emergency room at St. Joseph’s Hospital. (1007-1008, 1887) On August 11, 2009, Mrs. Mazella took Mr. Mazella to the emergency room -11- at St. Joseph’s Hospital, as she was afraid that he was having a heart attack. After being cleared medically, it was determined that he needed to be transferred to Community Psychiatric Emergency Program (hereinafter referred to as “CPEP”) for psychiatric treatment. (761, 1514-1583) Mr. Mazella stayed overnight at CPEP and was discharged on August 12, 2009. (767, 1518) While at CPEP, the Paxil was reduced to 30mg, the Zyprexa was discontinued and Klonopin was added. (767, 1519) Immediately after leaving CPEP, Mr. and Mrs. Mazella went to see Mr. Mazella’s primary care physician, Dr. Becker, to review the new medications. (768, 1945) Dr. Becker encouraged Mr. Mazella to take the new medications as prescribed and was optimistic that they would work as they had worked in the past. (771, 1087-1088, 1945). Between August 12, 2009 and August 17, 2009, Mr. Mazella was doing well and was in better condition than he was prior to the telephone call to Dr. Beals on August 9, 2009. (772) He was spending time outside, talking to neighbors, going out to public places such as the gym, a football game and his office, was participating in family events and more. (772-773) On August 17, 2009, Mr. Mazella contacted Dr. Beals’ office and requested an appointment for that day. Mr. and Mrs. Mazella were seen that afternoon. (1009, 1884, 1887) Mr. Mazella was very upset, felt that his wife thought that he -12- was a baby and wanted Dr. Beals to “fix him”. (1011, 1884, 1887) Mr. and Mrs. Mazella reported that while at CPEP, the dose of Paxil had been lowered to 30mg, the Zyprexa was discontinued and Klonopin was added. (1012, 1884, 1887) Mr. Mazella spoke of the desire to commit suicide and, for the first time, was unable to assure Dr. Beals that he would not act upon these desires. (1012, 1884, 1887) During this discussion about suicide, Mr. Mazella pulled his shirt over his head and began to audibly sob. (1012, 1884, 1887) Dr. Beals explained that inpatient treatment was needed as the outpatient care with medications was no longer providing the benefit that it had in the past. Mr. Mazella was reluctant to go inpatient locally due to the potential embarrassment in the community. As the discussion of inpatient therapy continued, Mr. Mazella became more withdrawn and irritated and it became obvious that Mr. and Mrs. Mazella were not appreciating the severity of the situation. The conversation became a very emotionally charged situation for all of them. (1015) Although Mr. and Mrs. Mazella began to appreciate how ill Mr. Mazella was, they were still reluctant to go immediately to CPEP for placement at an inpatient facility. (1013-1015, 1887) After Dr. Beals strongly encouraged them to go immediately to CPEP for further care (788, 1018, 1887), they agreed to go. (1018-1019) Dr. Beals was never contacted again by Mr. or Mrs. Mazella or any other medical provider on behalf of -13- Mr. Mazella prior to his death, and never treated or saw Mr. Mazella again after his last office visit of August 17, 2009. (1028) As per the instructions of Dr. Beals, Mr. and Mrs. Mazella went to CPEP for further treatment on August 17, 2009. (788, 1430) At CPEP, transfer to an inpatient treatment facility was recommended. (789, 1455-1459) Mr. and Mrs. Mazella refused and Mrs. Mazella assured the physician that she and her family would be able to care for Mr. Mazella at home. (790, 1455, 1459) When discharged from CPEP on August 18, 2009, Mr. and Mrs. Mazella were provided with the names of four psychiatrists to contact for further treatment. (794-795, 1455) They did not contact any of the doctors. (796) On the morning of August 19, 2009, Mr. Mazella was very agitated and began pacing back and forth. (797) Mrs. Mazella contacted the psychiatric mobile crisis unit for an appointment, but they were unable to accommodate Mr. Mazella as they were already fully engaged. (797) As such, Mrs. Mazella took Mr. Mazella back to CPEP on August 19, 2009. At CPEP, it was agreed that Mr. Mazella would be admitted to Auburn Community Hospital (hereinafter referred to as “Auburn”) for inpatient psychiatric care, where he remained for eight days until August 27, 2009. (797-798, 1382, 1613-1859) Mr. Mazella was admitted directly to the psychiatric floor at Auburn from -14- CPEP on August 19, 2009 at 7:09 p.m. (1128-1129, 1613) where the initial impression on admission was severe depression secondary to OCD symptoms and suicidal ideation. (1139, 1622) Mr. Mazella was seen by psychiatrist, Elisabeth Mashinic, M.D. (co-defendant in this case), on August 20, 2009. (1137, 1617- 1619) Mr. Mazella was unable to provide Dr. Mashinic with a coherent medical history and, instead, launched into a stream of consciousness monologue. While talking, Mr. Mazella threw himself onto the floor in a curled up position. When he was unable to get up, Dr. Mashinic ordered a psychotropic medication be given to calm him down as he was in so much distress. This permitted Mr. Mazella to sleep. (1137-1139) Dr. Mashinic’s diagnosis on admission was major depressive disorder and obsessive compulsive disorder. (1139, 1617-1619) Dr. Mashinic saw Mr. Mazella again on August 21, 2009. (1139, 1623- 1624) Dr. Mashinic noted that Mr. Mazella, during the night, had tried to strangle himself with his hospital gown and tried to break his own neck. She further noted that he was depressed, was having intrusive disgusting thoughts, had no energy, had no appetitie, wanted to be alone and isolated from others and was only fairly able to relate to people. (1142-1148, 1623-1624) Dr. Mashinic’s plan was to place Mr. Mazella on one-to-one watch as he was a suicide risk, to change the Paxil to Effexor as the Paxil was no longer having the desired affect, and to begin him on -15- Risperdal. (1142-1148, 1624) On August 22, 2009, Mr. Mazella was seen by psychiatrist, David Strickland, M.D. He was having no side effects or problems due to the change in medications and was more hopeful. Dr. Strickland discontinued the one-to-one watch, gave Mr. Mazella back his clothing and made no changes to the medications. (1155-1156, 1624) Dr. Strickland saw Mr. Mazella again on August 23, 2009. (1157, 1625) He noted that Mr. Mazella denied any suicidal ideations, had no agitation and was in a better mood. Dr. Strickland, however, added Trazodone to Mr. Mazella’s medication regime. (1157-1158, 1625). On August 24, 2009, Mr. Mazella was seen again by Dr. Mashinic. (1158, 1626) She noted that his depression was significantly decreased, that he had slept better and that he was thinking about the future. However, Mr. Mazella complained of increased disgusting, repulsive thoughts of a sexual nature. Her assessment was major depressive disorder resolving, obsessive compulsive disorder with increasing obsessions. Dr. Mashinic increased the Effexor to 150mg due to the obsessive thoughts. (1158-1162, 1626) Dr. Mashinic saw Mr. Mazella again on August 25, 2009. (1162, 1626) She noted that he was no longer suicidal, with decreased depression. However, Mr. -16- Mazella expressed apprehension about his scheduled discharge two days later as he wanted to improve more before discharge. (1163, 1626) Dr. Mashinic’s plan was for a social worker to arrange for post-discharge out-patient follow up psychiatric care with a psychologist and a psychiatrist. (1162-1163, 1626) On August 26, 2009, Dr. Mashinic reported that Mr. Mazella was less depressed, had decreased sexual obsessions and decreased anxiety. He had not had suicidal ideations in days. He was improving as illustrated by the fact that he was out of his room and interacting pleasantly with his peers. (1164-1165, 1627) The social worker assigned to Mr. Mazella was unable to find any private psychiatrists that were accepting new patients.(1171-1172, 1627-1628) As such, the social worker referred Mr. Mazella to the Brownell Center (herein after referred to as “Brownell”) for post-discharge out-patient psychiatric care. (1171- 1172, 1627-1628). Brownell is an out-patient mental health clinic that requires a three step evaluation process that can take up to one month before being accepted into the program and being able to see a psychiatrist. (578, 598-599) Mr. Mazella was discharged home on August 27, 2009. (1173, 1627-1628) At discharge, Mr. Mazella was taking Effexor 150mg, Risperdal .5mg at night, Klonopin .5mg twice per day and Trazodone 100mg at bedtime. (1173-1174, 1615-1616) Mr. Mazella was seen by a licensed clinical social worker, Kathleen -17- Adamek, at Brownell on September 3, 2009 for the initial part of the three part assessment to determine acceptance into the program. (580, 2000-2009) Mr. Mazella reported obsessive thoughts of a disturbing sexual nature and expressed some suicidal thoughts. Ms. Adamek noted that Mr. Mazella was unable to leave his home except for appointments, could not concentrate on activities, was unable to work and also had strained relationships with others. She recommended individual, group and/or family therapy with a psychiatric evaluation. (588-589, 2000-2009) On September 9, 2009, Mr. Mazella was seen by a psychotherapist, Celia Kamps, Ph.D., at Brownell as the second part of the assessment process. Ms. Kamps recorded that Mr. Mazella did not believe that his present medications were working. (606, 2010-2011) Mr. Mazella reported that he could not get up, that everything was overwhelming, that he did not have any positive thoughts, that he was having horrific thoughts, that he was obsessing over things and that he had suicidal thoughts that came and went. (607-608, 2011) Ms. Kamps recorded that Mr. Mazella was very uncomfortable, but did not wish to go back to CPEP although she suggested it. (609-610, 2011) Mr. Mazella also advised that he did not like to go out to too many places to avoid seeing people that he knows (612, 2011) -18- Ms. Kamps scheduled Mr. Mazella to return to Brownell the next day, September 11, 2009, for the final part of the assessment process. (616) On September 11, 2009, Mr. Mazella contacted Ms. Kamps to cancel his appointment and advise that his therapy was going to be handled by psychotherapist, Carl Ellerman, Ph.D., with his primary care physician, Dr. Becker, managing his medications. (617, 2020) Mr. Mazella saw Dr. Ellerman on September 11, 2009. (546, 2066-2069) Dr. Ellerman agreed to see Mr. Mazella with the understanding that Dr. Becker would be managing his psychiatric medications. (550) Dr. Ellerman noted that Mr. Mazella was very anxious, had intrusive repulsive thoughts, had a history of mental illness for the past 20 years and had success on Paxil for many years. (550- 551, 2068-2069) He also recorded that Mr. Mazella reported that he had self- weaned himself off of the Paxil. (555, 2068-2069) Despite being told of suicidal ideations, Dr. Ellerman did not feel that Mr. Mazella was a suicide risk as he stated that he could never do it. (559, 2068-2069). The plan at the conclusion of the appointment was for Dr. Ellerman to contact Mr. Mazella the next day to follow up and to schedule another appointment. (558, 2069) When Dr. Ellerman called on September 12, 2009 at noon, he learned that Mr. Mazella had committed suicide. (562, 2069) -19- On September 12, 2009, the day of the decedent’s suicide, Mr. Mazella was scheduled to attend three separate social activities out of the home - one of his daughter’s soccer games, a football game at the high school that he worked at and a wedding of a friend’s child that evening. (817-818) Mr. Mazella told his wife that he was going to be uncomfortable with these three events combined with the fact that he was scheduled to go back to work on Monday, September 14, 2009. (819) On that morning, Mr. Mazella ate breakfast and read the sports news as he often would. (638) When Mrs. Mazella went upstairs to take a shower to get ready for the day ahead, she asked Mr. Mazella to bring some soap up to her in the bathroom. He did and that was the last time that Mrs. Mazella saw Mr. Mazella alive. (639) After her shower, Mrs. Mazella called out to her husband to tell him that it was his turn to take a shower. He did not respond. Mrs. Mazella began to look for Mr. Mazella and eventually found him lying face down on the floor of the garage where he had committed suicide. (639-640) Procedural History: This wrongful death action was commenced against Dr. Beals and Dr. Mashinic in June 2010. Trial of this matter commenced on November 7, 2012 before the Honorable John C. Cherundolo, and concluded on November 20, 2012. At the conclusion of the plaintiff’s case, defendant moved for a non-suit and -20- dismissal of the case for plaintiff’s failure to make out a prima facie case, which motion was denied by the Court. (861-864) The same motion was renewed upon the close of the case and, again, was denied. (1200) On November 20, 2012, the jury returned a verdict in favor of plaintiff as against Dr. Beals only, finding that both Dr. Beals and Dr. Mashinic were negligent, but that Dr. Beals’ negligence was the sole cause of the decedent’s death. They awarded damages of $1,200,000 in the amounts of $800,000 to the decedent’s wife Janice Mazella, $200,000 to Alicia Mazella, $100,000 to Leah Mazella and $100,000 to Marissa Mazella, the decedent’s three daughters who were 18, 23 and 25 years old respectively at the time of the decedent’s death. (2439) By Notice of Motion, dated December 19, 2012, defendant moved for an Order, inter alia, to set aside the verdict. (2447-2472) Plaintiff opposed the motion. (2473-2480) By Notice of Motion, dated January 31, 2013, plaintiff moved for an Order granting judgment (2481-2487). Defendant cross-moved for an Order adjusting the amount of the judgment on February 15, 2013. (2488-2507) Plaintiff opposed the cross-motion. (2508-2529) By Decision and Order dated March 18, 2013, the trial court denied defendant’s motion to set aside the verdict, granted plaintiff’s motion for a judgment and denied defendant’s cross-motion for -21- an Order adjusting the amount of the judgment. (5a-15a) Judgment was entered on April 29, 2013 in favor of plaintiff in the amount of $1,474,161.34 representing the gross award plus interest and costs in addition to a daily rate of interest in the amount of $355.34 from February 1, 2013 into the future. (19a-21a) On May 13, 2013 an Amended Judgment was entered in favor of plaintiff, due to a typographical error in the initial judgment. (38a-40a) Defendant-appellant appealed to the Appellate Division, Fourth Department, which finally determined the action by affirming the Amended Judgment by a vote of 3-1, the Honorable Nancy E. Smith dissenting. (2539-2545) By permission granted by the Court of Appeals, (2537-2538) Dr. Beals hereby appeals from the Order of the Appellate Division, Fourth Department. -22- QUESTIONS PRESENTED A. Was the order of Supreme Court, which denied defendant Beal’s motion to set aside the verdict as legally insufficient and dismiss the case, or, alternatively, order a new trial, as affirmed by the Appellate Division, properly made in light of the failure of plaintiff’s proof on the issue of proximate cause, B. Was it reversible error, as a matter of law, for Supreme Court to have allowed into evidence, a Department of Health, Office of Professional Medical Conduct (OPMC) Consent Agreement and Order signed by Dr. Beals, which contained no finding of any charge relative to the plaintiff herein, but which contained charges relative to twelve (12) unrelated patients, thereby denying Dr. Beals a fair trial? Was defendant Beals denied a fair trial by the admission into evidence of a gruesome photo of the decedent at his death? C. Did the trial court commit reversible error in denying defendant- appellant’s request for a special verdict sheet where plaintiff had submitted three separate theories of liability to the jury? -23- POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS LEGALLY INSUFFICIENT After a trial by jury, the Court may set aside a verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law. CPLR 4404(a) Pursuant to CPLR 5501(c), the Appellate Division has the same authority to review and consider the weight and sufficiency of the evidence and dismiss a claim where no valid line of reasoning and permissible influences could possibly lead rational people to the conclusion reached by the jury on the evidence presented at trial. Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493; (1978) Levin v. Carbone, 277 A.D.2d 951 (4 Dept., 2000). Likewise, a verdict for the plaintiffth may be disregarded where, as here, the evidence so preponderates in favor of the defendant that it could not have been reached on any fair interpretation of the evidence. Lolik v. Big V. Supermarkets, 86 N.Y.2d 744 (1995); Stewart v. Olean Med. Group, P.C., 17 A.D.3d 1094 (4 Dept., 2005). th While the issue of proximate cause is typically left for the finder of fact to determine, the issue cannot be presented to a jury unless the court has been satisfied that a prima facie case has been established. Derdiarian v. Felix -24- Contracting Co., 51 N.Y.2d 308 (1980). In order to present a prima facie case of wrongful death by medical malpractice, a plaintiff must show, through expert testimony, that his injuries proximately resulted from the defendant’s departure from the accepted standard of care. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Dentes v. Mauser, 91 A.D.3d 1143 (3 Dept., 2012). General, conclusoryrd allegations by an expert that are based upon speculation or are unsupported by competent evidence are insufficient to meet plaintiff’s burden. Alvarez v. Prospect Hospital, supra, at 327; Dentes v. Mauser, supra; Chase v. Cayuga Medical Center at Ithaca, 2 A.D.3d 990 (3 Dept., 2003).rd The Court of Appeals has recognized that intervening and superseding acts may serve to break the causal nexus to the injuries suffered. Lynch v. Bay Ridge Obstetrical, 72 N.Y.2d 632 (1988); Martinez v. Lazaroff, 48 N.Y.2d 819 (1979); Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950 (1978); Derdiarian v. Felix Contracting Co., supra, at 315. Where the acts of third persons intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is severed when the intervening act is not foreseeable in the normal course of events, is independent of or is far removed from the defendant’s conduct. Lynch v. Bay Ridge Obstetrical, supra, at 636. When the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, is independent -25- or is far removed from the defendant’s conduct, the causal connection will be broken. Martinez v. Lazaroff, supra, at 820; Ventricelli v. Kinney System Rent A Car, Inc., supra, at 952; Rivera v. City of New York, 11 N.Y.2d 856 (1962). Taking plaintiff’s case as a whole - the medical records, the plaintiff’s expert’s opinions and plaintiff’s own testimony - there are significant gaps in plaintiff’s proof, such that the verdict against Dr. Beals is legally insufficient due to the failure to prove that the alleged acts of Dr. Beals were the proximate cause of the decedent’s suicide. At trial plaintiff asserted three theories of liability against Dr. Beals, as follows: (1) Dr. Beals’ failure to see Mr. Mazella in person for approximately ten years while renewing his prescription for Paxil was a substantial factor in causing Mr. Mazella’s suicide; (2) Dr. Beals’ changes to Mr. Mazella’s medications over the phone on August 9 and 10, 2009 (to increase Paxil to 40mg and add 2.5mg of Zyprexa, and to increase Zyprexa to 5mg, respectively) were substantial factors in causing Mr. Mazella’s suicide; and (3) Dr. Beals’ conduct at plaintiff’s last office visit on August 17, 2009 was a substantial factor in causing Mr. Mazella’s suicide. Plaintiff failed to show that any of these three alleged departures by Dr. Beals proximately caused the decedent’s death regardless of whether any deviation was conceded by defendant or proven by plaintiff. -26- Peter Breggin, M.D., a psychiatrist, testified in this matter as plaintiff’s only medical expert. Dr. Breggin should not have been qualified by the Court as an expert to give testimony in this case. It has long been held that a medical expert in a medical malpractice case should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. Matott v. Ward, 48 N.Y.2d 455 (1979). It has been held that an expert’s testimony should be disregarded if it cannot be considered competent medical opinion on the issue. Jordan v. Glenns Falls Hospital, 261 A.D.2d 666 (3 Dept., 1999); Douglas v.rd Gibson, 218 A.D.2d 856 (3 Dept., 1995). When the expert’s testimony is beyondrd his professional and educational experience, it cannot be considered competent medical opinion on the issue of defendant’s negligence. Dr. Breggin offered opinions herein regarding the treatment decisions by Dr. Beals despite the fact that they are beyond his professional expertise. Dr. Breggin conceded that his opinions on the subject are outside of the norm and are much more conservative than most psychiatrists. Dr. Breggin further stated that he believes that psychiatric drugs are overused (300) and that he can only try to be objective in giving his testimony as opposed to being an advocate of his novel theories about psychiatric drug use. (350). He has written and published several books that advocate much -27- less use of psychiatric medications. (301-302) Dr. Breggin has testified as an expert at trial about eighty times, (350) with each appearance being on behalf of the plaintiff. (351) He has earned over $100,000 per year since about 2000 solely by testifying in Court. (354) Dr. Breggin’s bias toward physicians that use psychiatric medications to treat patients despite the fact that such medications are widely used by most physicians, disqualifies him from providing competent and reliable testimony. Dr. Breggin testified that it was his opinion that Dr. Beals’ prescribing Paxil to the decedent over a period of years with no monitoring was a significant contributing factor in the decedent’s suicide even though Dr. Breggin also testified, unequivocally, that during that ten year period, the decedent was “doing well” and was “in remission”. (289) Likewise, Mr. Mazella’s primary care physician also testified that Mr. Mazella’s mental state was well managed during the ten year period. (1077-1078) He further opined that doubling of the Paxil to 40mg over the telephone on August 9, 2009 was a significant contributing factor in the decedent’s suicide. (256) (There is no expert testimony to establish that any of Dr. Beals’ actions on August 10, 2009 or August 11, 2009 were departures from accepted standards of medicine or that prescribing Zyprexa was a substantial contributing factors in the -28- decedent’s injuries (366-367).) Dr. Breggin’s testimony as to proximate cause was unsupported by competent evidence and, in fact, completely ignored the overwhelming evidence of countless and significant intervening events and actions by others that took place in the thirty-four days between Dr. Beals’ August 9, 2009 prescription of Paxil and the decedent’s September 12, 2009 suicide. The decedent’s suicide was too far removed from Dr. Beals’ treatment of the decedent on August 9, 2009 and before. Furthermore, the subsequent events that took place were independent of Dr. Beals’ treatment and not foreseeable. Each of the multiple events constitute independent breaks in the connection between Dr. Beals and the decedent’s suicide Specifically, after seeing Dr. Beals, the decedent had an extensive course of psychiatric care and treatment as follows: • Decedent was seen in St. Joseph’s Hospital’s emergency room on August 11, 2009 where it was determined that he required a psychiatric evaluation. (210, 1571); • Decedent was transferred to a psychiatric unit at Community Psychiatric Emergency Program (“CPEP”), on August 11, 2009 where his psychiatric medications were changed by a psychiatrist from what Dr. Beals had previously prescribed. (210-211, 1523-1524); -29- • Decedent was kept overnight in the psychiatric unit at CPEP until August 12, 2009 when he was deemed safe for discharge by a psychiatrist. (1523- 1524); • Decedent was seen by his primary care physician, Peter Becker, M.D., on August 12, 2009, who confirmed that the new psychiatric medications were appropriate. (368); • Decedent did very well between August 12, 2009 and August 17, 2009 and was actually in better condition than when he called Dr. Beals on August 9, 2009. (772) • Decedent was seen again at CPEP on August 17, 2009, immediately following his last appointment with Dr. Beals (788, 1430) where admission to a psychiatric facility was recommended by a psychiatrist. (789); • Decedent independently refused admission to a psychiatric facility on August 17, 2009, although it was recommended to them. (1455); • Decedent was kept overnight at CPEP where his psychiatric medications were changed again. (1457); • Decedent was permitted to go home from the psychiatric facility on August 18, 2009 despite the recommendation for inpatient psychiatric care. (1455- 1457) Decedent was given the names of four psychiatrists to contact for -30- further treatment, none of whom were ever contacted by decedent; • Decedent returned to CPEP on August 19, 2009 when it was determined that admission was necessary. (1382); • Decedent spent eight days as an inpatient at the Auburn Community Hospital psychiatric unit where he was seen by two different psychiatrists. (1128-1129); • Decedent’s psychiatric medications were changed three times, by two different psychiatrists, during his eight day inpatient psychiatric admission at Auburn. One of the psychiatrists was co-defendant Elisabeth Mashinic, M.D. (1142-1148, 1155-1158); • Decedent attempted to commit suicide on August 21, 2009 during his eight day inpatient psychiatric admission at Auburn. Plaintiff’s medications were changed again. (1623-1624); • Decedent advised the staff during his eight day inpatient psychiatric admission at Auburn that he was not ready to be discharged home. (1626) • On August 24, 2009, Decedent was seen by Dr. Mashinic, who changed his medication. • Decedent was deemed safe for discharge from his eight day inpatient psychiatric admission at Auburn by Dr. Mashinic. (1627-1628, 1183), even -31- though there were no available psychiatrists accepting new patients for follow-up care • Decedent was referred by a social worker to Brownell Center for post- discharge out-patient psychiatric care; • Decedent was discharged from Auburn to home on August 27, 2009; • Decedent did not have out-patient psychiatric care scheduled for him at the time of his discharge from his eight day inpatient psychiatric admission. (1627-1628); • Decedent began the three session and one month long evaluation process required at Brownell, a psychiatric facility for out-patient care, on September 3, 2009. (2000-2009, 578, 598-599); • Decedent did not receive immediate psychiatric care on September 3, 2009 despite reporting to the social worker at Brownell that he was having suicidal thoughts. (2000-2009); • Decedent returned for the second part of his evaluation at Brownell on September 9, 2009. (2010-2011); • Decedent refused to go to a psychiatric facility for care on September 9, 2009 despite the recommendation of a psychotherapist at Brownell. (2010- 2011); -32- • Decedent did not keep his appointment for part three of his evaluation at Brownell on August 11, 2009. (2020) • Decedent was seen by Dr. Ellerman, a psychotherapist, on September 11, 2009 who determined that he was not a suicide risk, although decedent told Dr. Ellerman of his suicidal ideations. (2066-2069) • Mr. Mazella committed suicide the very next day, September 12, 2009. The evidence herein is overwhelmed by competent proof of intervening and superseding acts that sever any causal connection between Dr. Beals’ treatment of the decedent and the decedent’s September 12, 2009 suicide, making the verdict against Dr. Beals legally insufficient to stand. No causal connection existed on any of the theories of liability offered by plaintiff. The decedent’s suicide is too far removed, as a matter of law, from the treatment provided to the decedent by Dr. Beals and the myriad of intervening and superseding acts were either independent of Dr. Beals’ treatment, not foreseeable or both. Without a causal connection to the decedent’s suicide, Dr. Beals initial and subsequent motions to dismiss should have been granted and judgment should have been entered in favor of Dr. Beals as plaintiff’s case was legally insufficient. In her dissenting opinion in the Appellate Division, Judge Smith summarized her conclusions on this legal issue, stating: -33- The weight of the evidence establishes that...the immediate cause of [decedent’s] death was either the disease from which he suffered or the medications that he took prior to his suicide. It is undisputed that defendant did not prescribe any medications for decedent for approximately one month prior to his death, and defendant obviously did not cause the underlying disease that all of the defendants were involved in treating. ...[Plaintiff’s] expert testified that the later treatment providers were negligent and, most notably, that the psychiatrist who released decedent from the inpatient psychiatric unit at the hospital was “where the buck stops. The buck stops with the psychiatrist to make sure [decedent] got help, somebody else got it done.” Thus, even according to the testimony of plaintiff’s expert, liability for decedent’s suicide lay with the final treating psychiatrist. Consequently, based on the different regimen of medications that decedent had been prescribed, which were different from the medications that decedent had taken while under the care of defendant, plus the extensive medical treatment provided by other medical professionals for several weeks, and their prescription of medications that have an increased risk of suicide, all of which took place after defendant’s treatment of decedent ended, I conclude that any causal connection between defendant’s prior negligent treatment of decedent and decedent’s suicide was severed. Thus, “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v. Hallmark Cards, Inc., 45 NY2d 493,499). Plaintiff failed to make out a prima facie case, requiring dismissal of the action for failure of proof on the issue of proximate cause requiring reversal of the Amended Judgment. -34- POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE After a trial by jury, the Court may order a new trial of a cause of action or severable issue where the verdict is against the weight of the evidence or in the interest of justice. CPLR 4404(a). Having failed to dismiss plaintiff’s claim for failure to make out a prima facie case, it was a further error of law for the lower court to have failed to set aside the verdict as against the weight of the evidence and for the Appellate Division to have failed to reverse the lower court’s denial of defendant’s post-trial motion and order a new trial. On November 20, 2012, the jury rendered a verdict in favor of plaintiff, based upon an improper verdict sheet containing only one generalized interrogatory on departure and thus only one on proximate cause, (see Point IV) finding that Dr. Beals was negligent in his treatment of the decedent and that said negligence was the sole cause of the decedent’s death. (2434-2440) Taking the case as a whole, as more fully set forth in Point I, there are overwhelming issues with plaintiff’s proof, such that the verdict against Dr. Beals is against the weight of the evidence. Specifically, the evidence in this case illustrates that Dr. Beals’ actions were not the cause of the decedent’s suicide as -35- they were too far removed from the suicide and that there were countless independent and unforeseeable events that took place up until the September 12, 2009 suicide, as outlined above, that any causal connection between Dr. Beals’ actions and the suicide was severed. Any fair interpretation of the evidence herein could not have resulted in a verdict against Dr. Beals. Appellate Division Judge Smith stated: Plaintiff offered the testimony of a medical expert who opined that defendant was negligent in prescribing decedent’s medication, which caused decedent to become so overmedicated that he was in a toxic state, and that defendant was additionally negligent by refusing to provide care for decedent thereafter. That same expert, however, testified that the later treatment providers were negligent and, most notably, that the psychiatrist who released decedent from the inpatient psychiatric unit at the hospital was “where the buck stops. The buck stops with the psychiatrist to make sure [decedent] got help, somebody else got it done.” Thus, even according to the testimony of plaintiff’s expert, liability for decedent’s suicide lay with the final treating psychiatrist. (2543) Dr. Beals produced medical expert Benson Zoghlin, M.D. Dr. Zoghlin is Board Certified in Family Practice, has been licensed to practice medicine in the State of New York for twenty-five years and treats patients in a variety of medical specialties, including psychiatry. (685-692) Dr. Zoghlin testified unequivocally that Dr. Beals’ failure to see the decedent during the ten years that he was renewing his Paxil prescription did not contribute to the decedent’s death. (705) He explained that during this ten year period of time, the decedent’s symptoms -36- were under control on Paxil and did very well. (706, 709) Plaintiff’s expert agreed. (371) More importantly, Dr. Zoghlin explained that after the decedent began to experience symptoms again in August 2009, he was treated by a number of subsequent and intervening medical providers after Dr. Beals up until the September 12, 2009 suicide, but most significantly during an eight day admission to Auburn for psychiatric treatment prior to his suicide. During this admission, the decedent’s entire medication regime was readjusted substantially and he was reassessed as being safe and ready for discharge. (706) As such, Dr. Beals’ actions or inactions for the ten years up to August 9, 2009 had absolutely no impact upon the decedent and were not the cause of the decedent’s death. Dr. Zoghlin also opined that the August 9, 2009 increase in the Paxil dosage from 20mg to 40mg was appropriate and was not a contributing factor in the decedent’s suicide. (711) Dr. Zoghlin explained that Dr. Beals had a significant history with the decedent and the use of Paxil. Dr. Beals saw, on at least two prior occasions, that the Paxil was successful in relieving the decedent’s symptoms. (709, 711) The decedent had taken Paxil at 40mg in the past and Dr. Beals was well aware of how this medication and its various dosages had impacted the decedent in the past. (712-713) In fact, the decedent even took 50mg at one point in time. (979) Even if found to be a departure, Dr. Zoghlin testified that the August -37- 11, 2009 overnight admission to CPEP breaks any connections between Dr. Beals’ August 9, 2009 treatment of the decedent and the suicide of September 12, 2009. He explained that during this intervening hospitalization at CPEP, the decedent’s medications were changed from what Dr. Beals had prescribed and the decedent was fully assessed and deemed ready for discharge. (715-716) These events were all outside of Dr. Beals’ care for the patient. (716) In addition, the decedent, upon discharge from CPEP, went immediately to see his primary care physician, Dr. Becker, to confirm the appropriateness of the new medications. (1945) He did not go to see Dr. Beals for an opinion. Dr. Beals did not know about or confirm that the new psychiatric medications and treatment plan from CPEP were appropriate. The decedent went to Dr. Becker instead. Dr. Beals cannot be held accountable for the independent events that took place after Dr. Beals saw the decedent. Dr. Zoghlin testified that the events of the August 17, 2009 were not a factor in the decedent’s suicide. (717-718) He stated that there is no way to determine whose version of the events of this particular appointment are true. (717) Dr. Zoghlin opined that under the circumstances of dealing with a suicidal patient and believing that hospital admission was the best option for proper treatment, it is appropriate for the physician to raise his voice. (718-719) He further opined that regardless of whose version of the events one believes, the -38- events of the appointment played no role in the decedent’s suicide. (721) Again, Dr. Zoghlin testified about the several instances of subsequent, independent and intervening medical treatment that the decedent received after the August 17, 2009 appointment. Specifically, he testified that the decedent received medical treatment after this appointment at CPEP on August 17, 2009, at CPEP again on August 19, 2009 and was admitted for eight days to Auburn on August 19, 2009. (721) Finally, Dr. Zoghlin opined that the cause of the decedent’s suicide was his major depressive disorder, (741) as opposed to anything that Dr. Beals did or did not do. The evidence so preponderates in favor of the defendant that the verdict could not have been reached on any fair interpretation of the evidence. As such, the lower Court erred in failing to grant defendant’s motions to set aside the verdict. If the matter is not dismissed completely, the Appellate Division Order affirming the Amended Judgment should be reversed, the verdict should be set aside and a new trial ordered. -39- POINT III THE VERDICT SHOULD BE SET ASIDE AS DEFENDANT WAS DENIED A FAIR TRIAL DUE TO CUMULATIVE ERRORS OF THE TRIAL COURT When the record on trial presents cumulative errors of law that are prejudicial and substantial, a new trial is required in the interests of justice. Schwartz v. Maimonides Hospital Center, 48 A.D.2d 709 (2 Dept., 1975);nd LaPosta v. New York City Transit Authority, 32 A.D.2d 964 (2 Dept., 1969);nd Karnbach v. Bould, 24 A.D.2d 600 (2 Dept., 1965).nd A. The Trial Court Erred In Permitting an OPMC Consent Agreement and Order To Be Admitted The trial court committed reversible error, as a matter of law, in permitting into evidence an Office of Professional Medical Conduct (OPMC) Consent Agreement and Order over defendant’s repeated objections, thereby denying defendant Dr. Beals a fair trial. It was further error to have denied defendant’s motion to set aside the verdict and order a new trial. The Appellate Division did not rule on whether the admission of the OPMC Agreement and Order was erroneous, but rather determined that any error committed by Supreme Court was harmless. (2540) The record clearly shows that the error was anything but harmless. -40- Public Health Law § 230 sets forth a clear directive that the proceedings of the OPMC and its records are not subject to disclosure pursuant to Article 31 of the CPLR with only very limited exceptions. This statute states, in pertinent part: § 230. State Board For Professional Medical Conduct; Proceedings 9. Notwithstanding any other provisions of law, neither the proceedings nor the records of any such committee shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided. No person in attendance at a meeting of any such committee shall be required to testify as to what transpired thereat. . As such, the fact that there were any proceedings by the OPMC against Dr. Beals, as well as any documents related to the resolution of the proceedings, should have been precluded from evidence at this trial. On January 26, 2012, Dr. Beals signed a Consent Agreement and Order to resolve proceedings against him by the OPMC regarding the manner in which he provided treatment to thirteen individual patients, including the decedent. (415a- 430a) The decedent is listed as patient A in the OPMC’s charges against defendant. Defendant had agreed not to contest the allegations with respect to those patients who were designated patients B through M in the Consent Agreement. Paragraphs “B” through “M” represented twelve of Dr. Beals’ patients to whom he prescribed various medications. With respect to these patients, Dr. -41- Beals was essentially charged with having inadequate face-to-face office visits and failing to sufficiently monitor and evaluate the patients’ medical condition. Dr. Beals did not admit to negligence in these cases. Most importantly, Mr. Mazella was not one of the twelve patients. On October 31, 2012, prior to trial, Dr. Beals moved to preclude the proceedings by the OPMC and the Consent Agreement and Order (1367-1374) in its entirety on the basis that it lacked any probative value to the issues that required jury resolution and would be unduly prejudicial to Dr. Beals. (80a-455a) Supreme Court denied the motion and permitted the OPMC proceedings against Dr. Beals and the OPMC Consent Agreement and Order to be admitted to evidence in its entirety, including the proceedings that involved the twelve patients of Dr. Beals that are completely unrelated to the instant case. (29-31) What transpired at trial when Dr. Beals was called by plaintiff as the first witness is described by Judge Smith in her dissent: During cross-examination at trial, defendant admitted that he had failed to appropriately monitor decedent while he was on medication. Plaintiff’s attorney then asked whether that constituted medical malpractice. After Supreme Court overruled the objection of defendant’s attorney, defendant indicated that it was not. The court then permitted plaintiff’s attorney to introduce the consent agreement in evidence and to use it to impeach defendant. That was error. (2543) -42- New York courts have refused to allow a plaintiff to introduce findings of the OPMC of acts of a malpractice defendant that are unrelated to the plaintiff’s case. Cipriano v. Ho, 29 Misc.3d 952 (Kings County 2010); See, also Baragano v. Vaynshelbaum, 2005 N.Y. Slip OP 30465 (Sup. Ct. New York County 2005). In Maraziti v. Weber, 185 Misc. 2d 624 (Dutchess County 2000), where the OPMC findings did not relate to the case at bar, the court stated that: [I]nformation from reports of OPMC unrelated to the instant case would be of marginal relevance at best, but would be likely to unduly prejudice the jury. The jury should not be provided the opportunity, or be impliedly encouraged, to assume that the facts underlying one incident would have necessarily governed a finding about a subsequent incident, solely because the two events are substantively similar. Id. at 626. Thus, even when it can be shown that the OPMC findings regarding the unrelated incidents are similar to the case at bar, as is the case herein, the findings of the OPMC should not be admitted into evidence because of the prejudicial effect it could have on the jury. See, Dooley v. Columbia Presbyterian Medical Center, 2009 WL 2381331 (SDNY, 2009). The Court in Baragano, supra, also ruled that: When administrative findings do not directly relate to allegations in the suit, but rather, pertain to a particular incident that does not involve the plaintiff, courts have often refused to allow their introduction into evidence because the potential for prejudice is too great. Underlying the reluctance of courts to admit such findings is the well known evidentiary principal that, generally, it is improper to prove that a person acted in a -43- certain manner on a particular occasion by showing that the actor acted in a similar manner on a different, unrelated occasion. Matter of Estate of Brandon, 55 N.Y.2d 206 (1982); Rosso v. Beer Garden, Inc., 12 A.D.3d 152 (1 Dept. 2004).st The Court in Baragano, supra, in dealing with an OPMC report pertaining to the defendant which was not related to the issues at bar also indicated that: [a]llowing plaintiff to introduce proof of all OPMC reports dealing with defendants would be “unwise and most unfair.” Defendants would have to justify and explain prior conduct unrelated to plaintiff, resulting in a distracting series of mini-trials and negatively impacting the jury’s objectivity. Although the OPMC findings as to Dr. Beals’ twelve patients that are unrelated to this case are similar to the events herein, they should have been precluded to prevent the overwhelming prejudicial effect that they had in denying Dr. Beals a fair trial. The circumstances by which the trial court justified the admission of this highly prejudicial document into evidence related to plaintiff’s questioning of defendant as to whether he admitted to committing “medical malpractice.” Once again, Judge Smith hits the nail right on the head when she wrote in her dissent: First, the question that plaintiff’s attorney asked defendant called for defendant to admit that he had committed medical malpractice with respect to his treatment of decedent. Defendant admitted that he was negligent in his care of certain patients but, as noted above, it is well settled that the elements of “a medical malpractice [claim] are a deviation or departure from accepted community standards of practice -44- and evidence that such departure was a proximate cause of injury or damage” (Geffner v. North Shore University Hosp. 57 AD3d 839, 842; see Foster-Sturrup v. Long, 95 AD3d 726, 727). Inasmuch as defendant did not admit to either medical malpractice or all the elements of a claim of medical malpractice by signing the consent agreement, the court should have sustained the objection of defendant’s attorney to the question as asked. Defendant had conceded a deviation prior to the commencement of trial, but never conceded proximate cause, which was and is his extensive defense of the matter. (See Points I and II, supra.) Thus, the question posed by plaintiff’s counsel of whether defendant conceded committing medical malpractice was improper (130) and the admission of the OPMC based on defendant’s answers at trial was clearly error as a matter of law. There were no findings by OPMC pertaining to Dr. Beals’ treatment of the decedent and there were no admissions or concessions before the OPMC by Dr. Beals pertaining to his treatment of the decedent. The OPMC documents admitted into evidence at the time of trial contain nothing more than mere allegations of negligence (prejudicially including gross negligence and gross incompetence) against Dr. Beals pertaining to patients “A” through “M”, with patient “A” being the decedent herein. Dr. Beals agreed to not contest the allegations of negligence against him with regard to patients “B” through “M” only, but never made any such agreement regarding the allegations pertaining to his treatment of patient -45- “A”, the decedent. (415a-427a). In fact, patient “A”, the decedent, was specifically excluded from the Consent Order and Agreement, without any admissions being made regarding any of Dr. Beals’ treatment of the decedent. Without any concessions of negligence to the OPMC that pertain to the decedent or any findings of negligence by the OPMC that pertain to the decedent, the OPMC documents, that contain nothing more than allegations of negligence, had no probative value to the issues herein, were clearly prejudicial and should have never been admitted into evidence. Its admission prevented Dr. Beals from having a fair trial. Once the OPMC documents were admitted into evidence, the prejudice sustained by Dr. Beals permeated through the entire trial by plaintiff’s counsel’s repeated use of said documents. Dr. Beals lost any chance of the jury hearing this case impartially. Once again, Judge Smith’s dissenting opinion accurately states the basis upon which defendant was denied a fair trial: Next, even assuming, arguendo, that defendant had admitted to medical malpractice by signing the consent agreement, and that it was permissible for plaintiff to use an alleged prior inconsistent statement to impeach the credibility of a witness that she herself had called (see generally Jordan v. Parrinelo, 144 AD2d 540, 541), it is clear that defendant did not admit to any negligence in the consent agreement with respect to decedent. Moreover, because defendant admitted in the consent agreement to negligence only with respect to the 12 other patients, the consent agreement did not constitute a prior inconsistent -46- statement in the context of the issues at trial and defendant’s testimony, both of which concerned only decedent. Given the highly prejudicial nature of the statements in the consent agreement...as well as the complete lack of either probative value to the issues at trial or relevance for impeachment purposes, I conclude that defendant was deprived of a fair trial by the admission of the consent agreement in evidence and by permitting plaintiff’s attorney to cross-examine defendant regarding it. The Appellate Division’s determination that any error in the admission of the Consent Order constituted harmless error defies all logic and clearly constitutes an error of law. As a general rule of evidence, “it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion.” Matter of Estate of Brandon, 55 N.Y.2d 206, 210-211 (1982) Coopersmith v. Gold, 223 A.D.2d 572, 573 (2d Dep’t 1996); Torres v. Ashmawy, 24 Misc.3d 506 (Orange County 2009). The recognized exceptions to this propensity rule are if the evidence of other similar acts has some relevancy to the issues presented other than mere similarity, such as to establish motive, intent, absence of mistake or accident, a common scheme or plan, or idenity. Brandon, at 211. In Coopersmith v. Gold, 223 A.D.2d 572, (2d Dep’t 1996) a malpractice action against a psychiatrist for allegedly engaging in a sexual relationship with -47- his patient, the court held that testimony of other women who alleged the defendant engaged in a sexual relationship with them while they were patients was not admissible as an exception to the propensity rule. The court reasoned that “it is clear that these alleged similar instances... were no more than separate and independent transactions entered into as the occasion arose and not in pursuance of any preconcerted general plan or design.” Id. at 573. Patients “B” through “M” referenced in the January Agreement and Order were separate and independent cases wherein Dr. Beals made an assessment and plan for each patient’s condition based on his or here own unique symptoms and history. These cases have no bearing or probative value on the instant matter. Significantly, the charges that Dr. Beals agreed not to contest in the January Agreement and Order do not involve the deceased, nor do they address the same subject matter of this case, that of the proper treatment for a patient with a long history of depression, anxiety and OCD and the effectiveness of Paxil and Zyprexa to treat such a condition. Since such evidence is wholly unrelated to this matter, it should have been excluded. Prior to trial, Dr. Beals conceded that prescribing Paxil to the decedent over the course of years without any face to face contact was not consistent with medical standards. (130-131, 1041) During jury selection, the trial court advised -48- all of the prospective jurors that Dr. Beals conceded that the manner in which he prescribed Paxil to the decedent was not consistent with prevailing medical standards. (3) During opening statements, plaintiff’s counsel suggested to the jury that Dr. Beals was going to admit that the manner in which he prescribed the Paxil to the decedent was improper. (55) During opening statements, counsel for Dr. Beals conceded that Dr. Beals’ continuing to prescribe Paxil to the decedent over ten years without seeing the patient was a regrettable action that was not consistent or acceptable in terms of the standard of care. (68) Dr. Beals’ concession that prescribing Paxil to the decedent over the course of ten years without any face to face contact was not consistent with medical standards removes this specific issue from requiring jury resolution. Once conceded, the issue became moot and did not require any litigation. As this issue was not in dispute, any testimony or evidence submitted by plaintiff to establish the same was unnecessary, cumulative, prejudicial and should have been precluded, particularly the OPMC proceedings against Dr. Beals and the January 26, 2012 Consent Agreement and Order. The OPMC proceedings against Dr. Beals and the January 26, 2012 Consent Order and Agreement became non- probative to any of the issues that were to be presented to this jury, as this particular issue had already been resolved among the parties. Permitting plaintiff -49- to submit testimony and evidence in an effort to prove that it was a departure to prescribe Paxil for ten years without seeing the patient, an issue resolved prior to trial, was a prejudicial and substantial error, particularly where, as here, the evidence related to twelve (12) other patients and the OPMC Agreement contained no proof relative to the claimed departure relative to the decedent. On November 7, 2012, the morning that trial was to begin, Dr. Beals renewed his motion to preclude the OPMC proceedings and the January 26, 2012 Consent Agreement and Order specifically based upon the concession that it was a deviation to prescribe Paxil to the decedent over ten years without seeing him. (29-30) Again, the motion was denied. (30) This was also a prejudicial and substantial error by the trial court. The court’s error permitted the subject of the OPMC proceedings and the January 26, 2012 Consent Agreement and Order to resinate through the trial, distracting the jurors from the true issues that they needed to resolve. As the issue of the appropriateness of Dr. Beals’ prescription of Paxil to the decedent for ten years without seeing him had already been resolved, the sole purpose of entering the OPMC proceedings was to enrage the jury with this highly inflammable but irrelevant evidence. With each mention of the OPMC proceedings, the level of prejudice against Dr. Beals grew, making it impossible for him to have a fair trial. -50- For no reason other than to incite the jury, plaintiff moved to admit the OPMC’s January 26, 2012 Consent Agreement and Order into evidence when questioning Dr. Beals on plaintiff’s case. (131) Despite another objection by Dr. Beals, the documents were entered into evidence. (131) The process of submitting the OPMC documents into evidence lead to further prejudicial error by the Court that was compounded by an inappropriate comment by plaintiff’s counsel. When submitting the OPMC documents into evidence, the Court inquired which OPMC documents were being entered into evidence to which plaintiff’s counsel stated that there were two, but only one was being admitted into evidence. (132) (By motion in limine, the Court precluded other OPMC findings and documents pertaining to Dr. Beals as irrelevant to the issues of the case. (29)) The Court’s inquiry and plaintiff’s counsel’s response, in the presence of the jury, made it clear to the jury that there was more than one OPMC proceeding against Dr. Beals, despite the fact that all others were precluded. These highly prejudicial comments, in the presence of the jury, further made it impossible for Dr. Beals to have a fair trial. After the OPMC January 26, 2012 Consent Agreement and Order were entered into evidence, they were repeatedly raised and discussed by plaintiff’s counsel during the trial, further compounding the prejudicial and substantial -51- impact that their improper introduction into evidence already had on Dr. Beals. (132-135, 1041, 1280-1281) Specifically, plaintiff’s counsel spent a great deal of time questioning Dr. Beals regarding the OPMC proceedings and findings. Over another objection, plaintiff’s counsel elicited testimony through Dr. Beals that the OPMC charged him with thirteen counts of gross negligence, with respect to thirteen individual patients, only one of whom was the decedent, (132-136) counsel for plaintiff inquiring: Q: Is it true, Doctor that the OPMC has charged you with gross negligence, 13 counts, with respect to 13 individual patients of yours out there at Liverpool? (133) Further testimony was elicited that every one of the thirteen charges of gross negligence alleged that Dr. Beals failed to properly monitor his patients while administering pharmaceutical drugs. (133) Plaintiff’s counsel proceeded to have Dr. Beals testify that despite having an attorney present for the OPMC proceedings and despite his right for a trial on each of the allegations, that Dr. Beals chose to sign the January 26, 2012 Consent Agreement to resolve the proceedings. (134) In closing the discussion of the OPMC proceedings during the questioning of Dr. Beals, plaintiff’s counsel compelled Dr. Beals to testify about the nature of each punishment that OMPC inflicted upon him for his agreement with their allegations. (134-135) -52- While cross-examining Dr. Beals on the defendants’ case, plaintiff’s counsel, again, over objection, raised the subject of the OMPC proceedings against Dr. Beals. After establishing that Dr. Beals had not seen the decedent from 1999 through 2009, he compelled Dr. Beals to agree that this was the specific reason for the OPMC allegations against him. (1041) Dr. Beals was, again, unnecessarily forced to concede to the jury, once again, what defendant had already conceded, i.e., that this was a deviation from the standard of care, despite its irrelevancy to the issues of the case that required jury resolution. (1041) Finally, during summation, plaintiff’s counsel again used the highly inflammatory and prejudicial OPMC proceedings against Dr. Beals to discredit him and enrage the jury about Dr. Beals’ actions that were not an issue for jury resolution, as defendant had already conceded a departure relative to treatment form 2000 - 2009. (1280-1281). Plaintiff’s counsel even suggested to the jury that they not even have to consider whether Dr. Beals was negligent as the negligence was all spelled out in the OMPC documents. (1281) As a result of the Court’s improper ruling, permitting the introduction of the OPMC proceedings against Dr. Beals and the January 26, 2012 Consent Agreement and Order into evidence, plaintiff’s counsel had free reign to continuously and repeatedly disparage Dr. Beals with supporting documentation -53- despite the fact that the OPMC proceedings and documents were not relevant to any of the issues of the case or to the issues that the jury was asked to resolve. It further allowed the jury to be presented with evidence relating to patients other than the decedent; clearly an improper use of evidentiary material. The impact of the Court’s ruling was overwhelming, and the admission of the OPMC finding was meant to inflame the passions of the jury and served to confuse and distract the jury from the real issues that required resolution, causing significant prejudice to Dr. Beals and preventing him from having a fair trial. There is no way that the erroneous admission of the OPMC Agreement and Order was harmless error. It was harmful enough to deny defendant a fair trial, and requiring that the Appellate Division Order be reversed and the decedent be granted a new trial, in the event that the matter is not dismissed entirely. -54- B. The Trial Court Erred In Permitting A Gruesome Photograph Of The Decedent’s Body To Be Admitted Prior to trial, Dr. Beals moved to preclude the introduction of a photograph of the scene of the decedent’s suicide that graphically displayed the decedent lying face down on the ground in a pool of his own blood. (38-40, 1863) Said motion was denied and the photograph was admitted into evidence. (40) This ruling was a prejudicial and substantial error. In Harvey v. Mazal American Partners, 79 N.Y.2d 218 (1992), the Court of Appeals, while acknowledging the discretion of the trial Court to admit demonstrative evidence, warned: [C]ourts must be alert to the danger that, when ill-designed or not properly relevant to the point at issue, instead of being helpful they may serve but to mislead, confuse, divert or otherwise prejudice the purposes of trial. When there is such a threat, the trial court itself must decide ... based on the nature of the proffered proof and the context in which it is offered, whether the value of the evidence outweighs its potential for prejudice. Id at 224. In Harvey v. Mazal American Partners, supra at 224, the Court determined that the demonstrative evidence in question was admissible as the probative value of illustrating the plaintiff’s injuries and pain and suffering to the jury outweighed its potential for prejudice. Similarly, in Salazar v. B.R. Fries and Associates, 251 -55- A.D.2d 210 (1 Dept., 1998), the Court permitted photographs of the plaintiffst shortly following her accident only because they were probative to assist the jury in assessing the plaintiff’s pain and suffering. Id. at 211. Very differently, but using the same standard as the Court of Appeals, the Court in Blanchard v. Lifegear, Inc., 45 A.D.3d 1258 (4 Dept., 2007) ruled thatth the probative value of video tape of a surgical procedure was outweighed by the prejudicial effect of the videotape and was thus not admissible. Id. at 1260. Similarly, in People v. Wright, 38 A.D.3d 1004 (3 Dept., 2007), the Court ruledrd that autopsy photos would be precluded as their sole purpose of admission was to arouse the emotions of the jury. Id. at 1007. The photograph, in this case, of the decedent at the scene of his own suicide had no probative value to any of the issues requiring jury resolution and was extremely prejudicial as it only served to arouse the emotions of the jury. There was no dispute that the decedent committed suicide in his garage. There was no dispute that the decedent stabbed himself multiple times. There was no dispute that the decedent bled profusely from his self-inflicted wounds. There was no dispute that the decedent died lying face down on the floor of his garage as a result of his self-inflicted wounds. There was absolutely no reason for the jury to be shown this gruesome photograph as it did not assist the jury to resolve any of the -56- issues in dispute during this trial. Unlike Harvey, supra and Salazar, supra, the only issue of damages for this jury to determine was the extent of the economic damage done to the decedent’s estate as a result of his death. The issue of pain and suffering was not an issue for this jury to resolve or evaluate. There was no testimony during the course of the trial regarding the decedent’s pain and suffering as a result of the manner in which he committed suicide and the jury verdict sheet was void of any interrogatories regarding pain and suffering. (2434-2440) The photograph was not, in any way, probative of the issues that required jury determination and should not have been admitted. Furthermore, the admission of the photograph of the decedent at the scene of his suicide constituted cumulative evidence as the first responder to the scene testified as to what he saw in the garage on September 12, 2009 prior to the introduction of the photograph. Specifically, he testified that he observed “a male subject lying prone or face down on the ground with a large pool of blood around him, I presumed to be his own.” (120) Only after this vivid testimony regarding the scene, plaintiff’s counsel moved to have the photograph of the scene admitted into evidence. (121) Over objection, the Court permitted the photograph to be admitted into evidence. (121) The admission of the photograph solely served to -57- repeat the testimony of the first responder in a much more gruesome and emotional manner that caused great prejudice to Dr. Beals, had no probative value and prevented Dr. Beals from having a fair trial. The cumulative effect of these evidentiary errors requires that, if the event the matter is not dismissed, defendant Dr. Beals be granted a new trial. -58- POINT IV THE TRIAL COURT ERRED IN CHARGING THE JURY TO RENDER A GENERAL VERDICT AS TO BOTH LIABILITY AND DAMAGES AND IN DENYING DEFENDANT’S REQUEST FOR A SPECIAL VERDICT SHEET WITH INDIVIDUAL INTERROGATORIES Plaintiff set forth three theories of liability herein. Plaintiff’s expert identified three discrete and separate allegations of malpractice and testified that each of the alleged departures was a substantial factor in causing the decedent to commit suicide. Specifically, it was alleged that Dr. Beals was negligent (1) in prescribing Paxil to the decedent from 2000 to 2009 without any face-to-face contact; (2) in doubling the dosage of the decedent’s Paxil over the telephone on August 9, 2009; and (3) in abandoning the decedent during the office visit of August 17, 2009. Plaintiff’s expert further testified that each of these alleged departures was a substantial factor in the decedent’s death. (252-258) It is clear from simply relating the claims made by plaintiff, that these are three distinct acts of alleged negligence. Through the testimony of the decedent’s wife, three daughters and an economics expert, plaintiff also identified three components of damages - loss of income, loss of services and loss of parental guidance. Each of the alleged departures occurred at different times, under different circumstances - (1) for the ten year period from 2000-2009; (2) on August 9, 2009 -59- during the telephone call when Dr. Beals was out of town and (3) on August 17, 2009 during plaintiff’s last office visit with Dr. Beals. They constitute three separate acts, at three separate and distinct times, any of which could independently serve as a basis for a finding of malpractice if proximate cause were proven regardless of the finding as to any other act. Based upon the complexities of the issues of this case and the manner in which the trial testimony was presented, during the charge conference, defendant requested that the jury verdict sheet contain individual interrogatories for each of the alleged departures, for proximate cause for each of the departures and for the different components of damages, and that the jury be charged accordingly. (1206- 1207) Dr. Beals submitted a proposed jury verdict sheet that enunciated separate and distinct interrogatories for each, as follows: 1. Was Defendant Dr. Beals’ failure to see Mr. Mazella in person for approximately 10 years while renewing his prescription for Paxil a substantial factor in causing Joseph Mazella’s suicide? 2(a). Was Dr. Beals negligent for recommending during the phone call of August 9, 2009 that Mr. Mazella increase his Paxil to 40mg while adding 2.5mg of Zyprexa? If yes, (b) Was the recommendation to increase Mr. Mazella’s Paxil to 40mg while adding 2.5mg of Zyprexa on August 9, 2009 a substantial factor in causing the suicide of Joseph Mazella? 3(a). Was Dr. Beals negligent for recommending during the phone -60- call of August 10, 2009 that Mr. Mazella increase the Zyprexa to 5mg that evening? (b). Was the recommendation to increase the Zyprexa to 5mg on August 10, 2009 a substantial factor in causing the suicide of Joseph Mazella? 4(a). Was Dr. Beals negligent at the time of the August 17, 2009 visit? (b) Was Dr. Beals’s negligence at the August 17, 2009 office visit a substantial factor in causing the suicide of Joseph Mazella? 8. State the amount of economic loss, if any, resulting from Joseph Mazella’s death to Janice Mazella (wife), Marrisa Mazella (daughter)(date of birth: ), Leah Mazella (daughter)(date of birth: ) and Alicia Mazella (daughter)(date of birth: ) for: (a) The portion of Joseph Mazella’s earnings that would have been spent in the future care and support of Janice Mazella; (b) The household services Joseph Mazella would have provided for Janice Mazella; (c) Loss of parental guidance: (i) Alicia Mazella; (ii) Leah Mazella; and (iii) Marissa Mazella. (2463-2472) The Court denied Dr. Beals’ request, erroneously determining that he “believed that the claim is a singular claim,” in spite of the fact that plaintiff submitted several distinct and separate theories of departures in his evidence (1207) and, instead, charged the jury (1296-1331) and used a jury verdict sheet with one general interrogatory for negligence, one general interrogatory for -61- proximate cause and one general interrogatory for all of the components of damages without any specification regarding past versus future damages. (2434- 2440) Instead of charging the jury as to the specific allegations in this matter, Dr. Beals was merely given an exception to the ruling of the use of a general jury verdict sheet and charge. (1207) This ruling was a prejudicial and substantial error that prevented Dr. Beals from having a fair trial which prevents any appellate court from being able to adequately review and analyze the verdict rendered, thus requiring that the verdict be set aside. The denial of a request for a special verdict sheet and the appropriate charge in cases involving complex and individual issues is an abuse of judicial discretion, requiring reversal of the verdict and a new trial. Russo v. Rifkin, 113 A.D.2d 570 (2 Dept., 1985). While it is true that all of the individual departures may overlapnd (which is not the case herein), a general verdict does not adequately demonstrate what theory of liability the verdict is based upon. Steidel v. County of Nassau,182 A.D.2d 809 (2 Dept., 1992); Duffy v. Fear, 121 A.D.2d 928 (1 Dept., 1986). nd st It is reversible error to utilize a general verdict sheet when multiple theories of liability are submitted by plaintiff’s expert. Davis v. Caldwell, 54 N.Y.2d 176 (1981). The complexity of a jury charge and the precision of the verdict sheet should match the complexity of the medical issues on trial. Steidel v. County of -62- Nassau,182 A.D.2d 809 (2 Dept., 1992). It is well settled that a general verdictnd in favor of a plaintiff can stand only if each and every theory presented to the jury was adequately supported by the proof. Davis v. Caldwell, supra at 179; Papa v. City of New York, 194 A.D.2d 527 (2 Dept., 1993); Rossignol v. Silvernail, 146nd A.D.2d 907 (3 Dept., 1989); Mertsaris v. 73 Corp., 105 A.D.2d 67 (2 Dept.,rd rd nd 1984). The Court of Appeals in Davis v. Caldwell explained: It is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine if the verdict was not predicated on a finding in plaintiff’s favor on one of the claims which, for lack of supporting proof, should not have been submitted to it. Davis supra at 179-180. With the general verdict sheet used herein, it is not possible to determine upon what theory, or theories, the jury found liability, in particular as to proximate cause. Defendant asserts that none of the theories should have been submitted to the jury, as all were lacking in supporting proof on proximate cause. A. Verdict Sheet As To Liability As illustrated in Point III herein, Dr. Beals conceded that the manner in which he prescribed Paxil to the decedent during the period of 2000-2009 was a departure. However, Dr. Beals contested the allegations that he was negligent in the manner in which he treated the decedent on August 9, 2009 and August 17, 2009. As per the Court of Appeals’ ruling in Davis, supra, based upon the verdict -63- sheet used herein, it is impossible to determine if the jury found that all three of the theories of medical malpractice presented by plaintiff were supported by sufficient proof, and, thus, the verdict is flawed and must be set aside. Despite Dr. Beals’ concession of one of the three alleged departures, he contested that any of the alleged departures was a substantial factor in the decedent’s death. As illustrated in detail in Points I and II, the issue of proximate cause was not adequately supported by the proof submitted by plaintiff. There is no dispute that the decedent committed suicide. The question to be decided by the jury was whether the suicide was attributable to any of the three individually alleged acts of negligence. At the very least, and without diluting defendant’s contention that proximate cause was insufficiently proven on any of plaintiff’s theories, the failure of proof of proximate cause is particularly glaring on plaintiff’s claim of liability for Dr. Beals’ ten year gap in seeing plaintiff. Plaintiffs own expert unequivocally testified that during that ten year period, plaintiff was in remission and was fine. (288-289) As such, by concession of plaintiff’s own expert, that theory of liability is insufficiently supported on proximate cause and should not have been submitted to the jury in the first place. The general jury verdict sheet used herein does not adequately demonstrate how the jury determined proximate cause. It merely asked this jury to determine if Dr. -64- Beals’ negligence, without any specification as to which theory of negligence, was a substantial factor of the decedent’s death. (2434-2440) The jury’s finding of proximate cause needed to correlate to the same theory of negligence for which the jurors determined Dr. Beals to be guilty. Without being able to confirm that there was a finding of a departure on at least one of plaintiff’s individual theories and that the particular departure was found by the jury to be the proximate cause of the decedent’s death, the verdict is flawed due to the general language utilized by the Court. This inability to determine the validity of the verdict is precisely why the appellate courts have repeatedly condemned the use of general verdict sheets when recovery is sought on several different theories. Matter of Evanchuk,145 A.D.2d 559 (2 Dept., 1988); Kenigsberg v. Cohn, 117nd A.D.2d 652 (2 Dept., 1986). The lower court’s refusal to use a special verdictnd sheet was prejudicial and substantial error that prevents the appellate court from being able to adequately review and analyze the validity of the verdict, thus requiring that the verdict be set aside and a new trial ordered. B. Verdict Sheet As To Damages Damages in a wrongful death action in New York are limited to “pecuniary injuries” suffered by the distributees of the decedent’s estate. EPTL 5-4.3(a); Parilis v. Feinstein, 49 N.Y.2d 984 (1980). There are four elements of -65- compensable loss encompassed by the general term “pecuniary loss”: (a) decedent’s loss of earnings; (b) loss of services each survivor may have received from the decedent; (c) loss of parental guidance from the decedent; and (d) the possibility of inheritance from decedent. EPTL 5-4.3 In his proposed jury verdict sheet, defendant requested that the jury be provided with itemized interrogatories as to each element of pecuniary loss that were applicable to each distributee herein (the decedent’s wife and three daughters) and that the jury be charged accordingly. (2469-2472) In denying defendant’s request (to which objection and exception were taken), the Court utilized one single interrogatory for all of the categories of pecuniary loss for each of the decedent’s distributees without any specification of past versus future damages. (2439) The general jury verdict sheet used herein does not adequately demonstrate under what category, or categories of pecuniary damages the jury decided to award each of the distributees, or what portion of the award was meant to compensate for past damages and what portion of the award was meant to compensate for future damages. This causes significant prejudice to the defendant’s right to obtain appellate review of the damages award. In the case at bar, the jury awarded “monetary or economic loss” of $800,000 to the decedent’s wife, $200,000 to the decedent’s daughter (Alicia) who -66- was 18 years old at the time of her father’s death, $100,000 to the decedent’s daughter (Leah) who was 23 years old at the time of her father’s death and $100,000 to the decedent’s daughter (Marissa) who was 25 years old at the time of her father’s death. (2439) Based upon the general language of the verdict sheet and charge, there is no way to determine what portion of said awards are for loss of economic support, loss of services, loss of parental guidance, or loss of inheritance, or what portions of the award were for past damages versus future damages. Any analysis of the appropriateness of a jury award in a wrongful death matter must involve a review of the proof submitted with regard to each of the specific elements of pecuniary loss permitted by EPTL 5-4.3, for each of the distributees. In the case at bar, there was no testimony or proof submitted by plaintiff regarding any loss of inheritance by any of the decedent’s distributees due to the decedent’s death. As such, the only categories of pecuniary loss to be considered herein were the individual amounts of each of the distributees’ loss of economic support, loss of services and loss of parental guidance, if any. Under the claim of loss of parental guidance, there is no recovery for grief or loss of society and affection. Liff v. Schildkrout, 49 N.Y.2d 622 (1980). The Court of Appeals ruled that “affectional injuries” of grief and deprivation of -67- society and companionship are not compensable in a wrongful death action, as they are not pecuniary injuries. Tilley v. Hudson River R.R. Co., 29 N.Y. 252 (1864). However, the Tilley Court also stated that children of the deceased could allege a pecuniary injury from the premature loss of the educational training, instruction and guidance they would have received from their now deceased parent because that loss could affect their future well being in a worldly point of view. The Court continued and further distinguished this from injuries to the “feelings and sentiments” regarding the death. Id. at 285. In establishing that there is no limit for such damages to only minor children, the Court emphasized that a jury is free to award such damages for pecuniary injuries to any child of the decedent if persuaded by the proof offered. Id. at 287. Pecuniary loss must be based upon the reasonable expectancy of future assistance or support the beneficiaries would have had if their decedent’s life had continued. Gonzalez v. New York City Housing Authority, 77 N.Y.2d 663 (1991); Farrar v. Brooklyn Union Gas Co., 134 A.D.2d 31 (2 Dept., 1987); Didocha v.nd State of New York, 54 A.D.2d 786 (3 Dept., 1976). In determining therd appropriateness of awards for loss of parental guidance to children of the deceased, New York courts have emphasized that each case must be decided on its merits. DeLong v. County of Erie, 89 A.D.2d 376 (4 Dept., 1982) (since anth -68- infinite variety of human characteristics and family situations affect the numerous factors which must be examined, each case must be viewed on its own merits); Friscti v. State of New York, 35 A.D.2d 764 (3 Dept., 1970) (comparison withrd other cases is not really too useful since each case depends on its own merits). In all cases, there must be ample proof in the record to sustain damages awarded for pecuniary injury to children of deceased plaintiffs, whether infant or adult. DeLong v. County of Erie, supra; Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126 (4 Dept., 1980). th Courts have refused to permit an award for the pecuniary injuries of the decedent’s children when the proof of the injury was lacking. In Loehner v. Simons, 239 A.D.2d 468 (2 Dept., 1997), the Court vacated the award that wasnd made on behalf of the decedent’s son as there was no evidence in the record to establish any economic injury to the son that was caused by his mother’s death. Similarly, in Richardson v. Lutheran Medical Center, 70 A.D.2d 933 (2 Dept.,nd 1979), the Court determined that the factors of the case did not support the award for pecuniary injury as the jury had awarded. Also, in Bumpurs v. New York City Housing Authority, 139 A.D.2d 438 (1 Dept., 1988), the Court determined thatst there was no proof of the decedent providing any services to her children and, as such, dismissed the claim of loss of parental guidance. -69- In the case at bar, the Court’s use of a general interrogatory and charge for damages has made it impossible to analyze the appropriateness of the pecuniary loss award that the jury determined for each of the decedent’s distributees: Janice Mazella (decedent’s wife): It is conceded that the testimony in this matter provided by the decedent’s wife and the plaintiff’s economics expert established that Janice Mazella sustained pecuniary losses in terms of both a loss of the decedent’s income as well as a loss of the decedent’s services. However, the general interrogatory used by the Court regarding damages does not permit any review of the jury’s apportionment, if any, of the $800,000 awarded for her loss of economic support and for her loss of services. There is no way to determine the manner in which the jury reached this award or its appropriateness. The failure of the verdict sheet to specify the specific categories of pecuniary loss also prevents any determination of what reductions from the award, if any, are appropriate for income tax that the decedent would have been compelled to pay on his income. This causes significant prejudice to the defendant’s right to obtain appellate review of the wife’s damages award. Alicia, Leah and Marissa Mazella (decedent’s daughters): The proof herein does not support any award for pecuniary damages to the -70- decedent’s daughters due to the death of their father and the general interrogatory used by the Court regarding damages does not permit any review of the apportionment, if any, of the monies awarded by the jury among their loss of economic support, their loss of services and their loss of parental guidance. Alicia Mazella was 18 years old at the time of her father’s death. At the time of the trial, she was 21 years old and a senior in college. (852-853) Leah Mazella was 23 years old at the time of her father’s death. At the time of trial, she was 26 years old, was living out of the home and was employed full time as a third grade teacher. (744-745) Marissa Mazella was 25 years old at the time of her father’s death. At the time of trial, she was 28 years old, living out of the home, was married and was working full time as a registered nurse. (856-857) There was no testimony in this matter to establish what economic support, if any, the decedent was providing to any of his daughters at the time of his death, no testimony to establish what services, if any, the decedent was providing to any of his daughters at the time of his death and no testimony to establish that there was an expectation of continued support and services had their father lived. Although it was established that Alicia Mazella was living at home with her mother at the time of the trial (853), it was never established where she was living at the time of her father’s death. It was never established who was paying for her -71- schooling or who was paying for her housing or who was paying for her food and clothing or that her father was providing any financial support or services at the time of his death. Although there was testimony that the decedent drove Leah Mazella to school one time, during a snow storm, when she was in college (748), there was no testimony to establish what services, if any, her father was providing to her at the time of his death or what services were expected to have continued had her father lived. There was absolutely no testimony that the decedent ever provided any support or services to Marissa Mazella. In terms of the relationship between the decedent and his daughters and the level of his “parental guidance”, it was established that all three were very close to their father. There was testimony that he provided a tremendous amount of love, support, education and encouragement to his daughters when they were younger children (748, 853, 858) However, there was no testimony regarding what, if any, parental guidance he was providing to his daughters at the time of his death. There was even a concession by Leah Mazella that her father’s coaching of her sports only continued up until she was in high school. (746) There was no testimony to establish that the loss of the decedent could affect the future well being of any of the decedent’s daughters. Based upon the lack of testimony and evidence that any of the decedent’s -72- daughters sustained any pecuniary loss as a result of their father’s death, review of the jury’s award is necessary. However, without a verdict sheet that specified the jury’s award for each component of pecuniary loss, such review is impossible. There is no way to determine how the jury arrived at its award. The use of a general charge and verdict sheet was prejudicial and substantial error that prevented Dr. Beals from having a fair trial and has prevented Dr. Beals and any court from being able to properly assess and analyze the jury award for each of the decedent’s children. The Court’s further failure to use a jury verdict sheet that specifically required the jury to apportion any award between past and future damages has also made it impossible to determine how the jury arrived at its award or the appropriateness of the award. This was prejudicial and substantial error that prevented Dr. Beals from having a fair trial and has prevented Dr. Beals from being able to properly assess and analyze the jury award. The Court of Appeals has held that it is substantial error for the Court’s charge to the jury to completely lack any specificity and by the failure to discuss the evidence and to relate to it the principles that were charged and to apply the law to each party’s version of events. Green v. Downs, 27 N.Y.2d 205 (1970). The Court expressed that the charge should be precise and specifically relate to the -73- claims of liability. Id. at 208. It is imperative to state and outline separately the disputed issues of fact as the evidence may require. Without this kind of guidance, the proceedings will not result in an intelligent verdict. An accurate statement of the law is insufficient if it is not related to the precise issues. A proper charge on the issues is vital to the fair submission of the case to the jury. Id. at 209. Despite the request by Dr. Beals that the jury verdict sheet contain specific interrogatories as to each of the theories of negligence, proximate cause and damages put forward by plaintiff and that the jury be charged accordingly, the Court elected to utilize a general charge (1296-1331) and general verdict sheet. (2434-2440) In the Court’s charge to the jury, covering 35 pages in the printed record, there was not one reference to the proof on any of the individual and distinct theories of negligence put forward by plaintiff. (1296-1331) Also, when charging the jury on the issue of proximate cause, the charge was devoid of any mention of the individual and distinct theories of negligence put forward by plaintiff. (1296-1331) Finally, as to the charge on damages, while discussing all of the elements of damages, the trial court instructed that the jury only make one general finding as to damages as opposed to individual findings regarding each applicable component of damages: -74- State the total amount of monetary or economic loss, if any, to each Janice Mazella, Alicia Mazella, Leah Mazella and Marissa Mazella resulting from the death of Joseph Mazella. For the children of Joseph Mazella, this monetary loss should include the deprivation of the intellectual, moral and physical training, advice and assistance and the loss of parental nurturing and care and education that Joseph Mazella would have given the children had he lived. (2439) This language used by the Court in the jury verdict sheet and the charge was objected to by defendant during the charge conference. An exception to the charge and jury verdict sheet was given to Dr. Beals by the Court. (1206-1207) Regardless of the exception, the charge in this case was palpably inadequate and mandates that the verdict be set aside as it prevented Dr. Beals from having a fair trial and has prevented him from proper and thorough analysis of the basis for the jury’s verdict and award. Without comment, the Appellate Division determined that the failure to submit a special verdict sheet to the jury was not prejudicial and does not require a new trial. (2540) The Appellate Division’s determination constitutes an error of law, which requires reversal by this Court. The verdict should be set aside and, in the event the matter is not dismissed, a new trial should be ordered by this Court. -75- CONCLUSION For the foregoing reasons, the Order appealed from should be reversed, and the Amended Judgment should be set aside and a judgment of no cause of action should be entered in defendant Dr. Beals’ favor or, in the alternative, a new trial should be ordered, with such costs and disbursements as this Court may deem appropriate. Dated: White Plains, New York May 28, 2015 Respectfully submitted, By: _______________________________ Myra I. Packman, Esq. MEISELMAN, PACKMAN, NEALON SCIALABBA & BAKER P.C. 1311 Mamaroneck Avenue White Plains, New York 10605 (914) 517-5000 Appellate Counsel To: GALE GALE & HUNT LLC Attorneys for Defendant-Appellant WILLIAM BEALS, M.D. Mazella (00270341x9CCC0).wpd