Janice Mazella,, Respondent,v.William Beals, M.D., Appellant, et al., Defendant.BriefN.Y.June 2, 2016To 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) REPLY BRIEF FOR DEFENDANT-APPELLANT GALE GALE & HUNT, LLC Attorneys for Defendant-Appellant P.O. Box 6527 Syracuse, New York 13217 Tel.: (315) 637-3663 Fax: (315) 637-3667 Date Completed: September 1, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES……………………………………………………….ii POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS LEGALLY INSUFFICIENT………………………….1 POINT II THE TRIAL COURT ERRED IN PERMITTING OPMC FINDINGS TO BE ADMITTED…………………………………..10 The January 26, 2012 Consent Agreement and Order……………….10 The Consent Agreement and Order Is Not Admissible As Presumptive Evidence of Negligence…………………………….14 It Is Improper To Prove That A Person Acted On A Particular Occasion By Showing That He Did A Similar Act On A Different, Unrelated Occasion……………………16 The Consent Agreement and Order Is Not Admissible On The Issue of Credibility……………………………..19 CONCLUSION…………………………………………………………………...25 ii TABLE OF AUTHORITIES Cases Page Badr v. Hogan, 75 N.Y.2d 629 (1990) ……………………………………….20, 21 Bargano v. Vaynshelbaum, 2005 N.Y. Slip Op. 30465 (Sup. Ct. New York Co. 2005) …..16-17 Cipriano v. Ho, 29 Misc.3d 952 (Sup. Ct. Kings Co. 2010) …………………..16, 19, 21, 22 Coopersmith v. Gold, 89 N.Y.2d 957 (1997) ……………………………………….16 Matter of Brandon, 55 N.Y.2d 206 (1982) ……………………………………….16, 17, 18 Matter of Carlos V., 192 A.D.2d 661 (2d Dep’t 1993) ………………………….20-21 Matter of Sidoti, 55 A.D.3d 1162 (3d Dep’t 2008) ………………………….21 People v. Walker, 83 N.Y.2d 455 (1994) ………………………………………..20, 22 Spanier v. New York City Transit Auth., 222 A.D.2d 219 (1st Dep’t 1995) ………………………….20 Torres v. Ashmawy, 24 Misc.3d 506 (Sup. Ct. Orange Co. 2009) ……………19-20 1 POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS LEGALLY INSUFFICIENT Plaintiff-Respondent went to great lengths to expound on the timeframe between Dr. Beals’ last encounter with the decedent and the day of decedent’s death. In fact, plaintiff-respondent’s brief on that point takes up a significant portion of the argument. In it there is a detailed accounting of the extent of the decedent’s involvement with healthcare providers other than Dr. Beals, which absolutely breaks the causal chain between Dr. Beals’ involvement and the decedent’s death. Dr. Beals changed the decedent’s Paxil prescription on August 10, 2009 - 33 (thirty-three) days before the decedent’s death. Dr. Beals saw the decedent in his office on August 17, 2009 - 26 (twenty-six) days before the decedent’s death. During these subsequent days, the decedent was seen and treated by numerous other medical providers and had his psychiatric medications changed numerous times. Specifically, after seeing Dr. Beals, the decedent underwent an extensive course of psychiatric care and treatment that was not foreseeable to Dr. Beals and legally severs any ties between Dr. Beals and the decedent’s suicide. The timeline is as follows: 2 8/11/09: Decedent was seen in St. Joseph’s Hospital’s emergency department. He underwent a psychiatric evaluation. (210, 1571) Decedent was transferred to a psychiatric unit of the hospital (CPEP). Decedent made complaints that if he had a gun he would shoot himself. The providers changed the decedent’s medication by discontinuing the Zyprexa and lowering the dosage of Paxil to 30mg. (210-211, 1523-1524, 1526, 1535, 1590) 8/12/09: CPEP physicians prescribed Klonopin. (1519, 1526-1527, 1590-1591). 8/12/09: The decedent was discharged home after having stayed overnight with complaints of, “I can’t sleep, I can’t control my thoughts, I have to die, I can’t live like this.” (1594). He went immediately to his family physician, Carl Becker, M.D. The decedent made complaints of suicidal ideation. Dr. Becker advised the patient to continue of 30mg of Paxil and the Klonopin. (1518, 1945) 8/17/09: Office visit with Dr. Beals. Dr. Beals directed the decedent to CPEP after the decedent admitted he could give no assurances to 3 Dr. Beals that he would not act on his suicidal thoughts. (212, 1012, 1884) 8/17/09: The decedent was admitted to CPEP. The decedent stated to staff that if he had a gun, he would kill himself. (1404) 8/18/09: The decedent complained of feelings of hopelessness and worthlessness, and reported to a psychiatrist at CPEP that he would kill himself by any means possible. CPEP staff gave the decedent Klonopin, increased the Paxil to 40mg and added Risperdal. (216-217, 1418, 1463, 1491, 1471, 1477) The decedent was discharged home. The Risperdal was discontinued. (217-219) The decedent declined CPEP’s recommendation that he be admitted as an inpatient. (790, 1455, 1459) 8/19/09: The decedent returned to CPEP. He reported that he was suicidal and that he was opening drawers to try and get pills but his wife kept stopping him. He continued to take 40mg of Paxil and Klonopin. He was administered Ativan. (1392, 1395, 1404, 1421) The decedent was transferred as an involuntary admission to the 4 psychiatric unit at Auburn Memorial Hospital, where he remained as an inpatient for 8 days. (1382-1383, 1668-1676) 8/20/09: First encounter with Dr. Mashinic. The decedent reported suicidal ideation. Dr. Mashinic prescribed Paxil (40mg), Klonopin, Zyprexa, Geodon and Ativan. In the evening, the decedent tied the belt of his hospital gown around his neck and tried to kill himself. (181, 1632-1633, 1729, 1734) 8/21/09: The decedent was placed on one-on-one suicide watch. Dr. Mashinic discontinued the Paxil. She initiated Effexor XR, Risperdal, and Xanax. Dr. Mashinic noted that the decedent was depressed, was having intrusive disgusting thoughts, had no energy, had no appetite, wanted to be alone and isolated from others and was only fairly able to relate to people. (1142-1148, 1623-1624, 1633) 8/22/09: The decedent was seen by a second psychiatrist – David Strickland, M.D. Dr. Strickland discontinued the one-to-one watch. The decedent was started on Ambien. (1633, 1753-1754) 8/23/09: Dr. Strickland saw the decedent again and discontinued the Ambien. The decedent was started on Trazadone. (1157-1158, 5 1625, 1634) 8/24/09: Dr. Mashinic increased the level of Effexor XR. (1634) 8/27/09: The decedent was discharged home without any referral to a psychiatrist who could monitor him. Dr. Mashinic gave the decedent a 30-day supply of Effexor XR (treats depression, generalized anxiety disorder, panic disorder and social anxiety disorder), Risperdal (treats schizophrenia and symptoms of bipolar disorder), Klonopin (treats seizures, panic disorder and anxiety), and Trazodone (treats depression). (199, 229-230, 1173-1174, 1615-1616, 1821) 9/3/09: The decedent was evaluated at the Brownell Center for Behavioral Health, an outpatient mental health clinic, by a licensed clinical social worker – Kathleen Adamek. The decedent reported experiencing severe depression and suicidal thoughts (580, 588-589, 2000-2009) Since the decedent was discharged without anyone actively involved in managing his medications, during this appointment, the decedent’s wife contacted Dr. Mashinic about the decedent’s medication regimen. Dr. Mashinic discontinued the Klonopin. 6 (629) 9/9/09: Follow-up appointment at the Brownell Center. The decedent was seen by psychotherapist, Celia Kamps, Ph.D. The decedent reported that he believed his medication regimen was not working and that he continued to suffer from suicidal thoughts. (611, 630, 2011) Ms. Kamps suggested that the decedent return to CPEP but he stated he did not wish to return to CPEP. (609-610, 2011) Ms. Kamps scheduled an appointment for 9/11/09 at Brownell for the final part of the assessment process. (616) 9/11/09: Decedent contacted Ms. Kamps and canceled his appointment at Brownell. He advised that his therapy would be handled by psychotherapist, Carl Ellerman, Ph.D. and his medications would be managed by his primary care physician, Dr. Becker. (617, 2020) The decedent attended his appointment with Dr. Ellerman. Decedent reported suicidal ideations. Dr. Ellerman told the decedent he would call him the next day. (559, 572-573, 2068-2069) 7 9/12/09: The decedent committed suicide. This evidence, established at trial, shows an extensive medical course of treatment far outside the scope of Dr. Beals involvement in the decedent’s care. Dr. Beals managed the decedent’s care for the approximate ten years before the decedent’s death. During that time, the decedent was successfully managed on a regimen of Paxil 20mg. During that time the decedent exhibited no signs of serious contemplation of suicide. He was a successful school administrator, coach and loving husband and father. He had numerous successes, both personally and professionally. While it may have been better practice for Dr. Beals to have had more regular visits with the decedent, it cannot seriously be argued that the decedent’s life was an unqualified success during this time. In August 2009 however, there is a striking break in the course of treatment that the decedent received and underwent. On August 10, 2009, Dr. Beals made a modest adjustment to the decedent’s Paxil dosage in the face of a change in the decedent’s mental health. However, it was an adjustment that Dr. Beals had made in the past and there was a plan in place to follow-up. This adjustment represents the last significant involvement by Dr. Beals in the care of the decedent. Plaintiff-respondent attempts to make the argument that an August 17, 2009 office 8 visit was the seminal event and that all of the decedent’s harm flowed from that encounter. The argument is that Dr. Beals maltreated the decedent at this office visit and that the decedent felt such overwhelming humiliation that he decompensated and eventually took his own life. This argument ignores the medical records in evidence that notably fail to include any documentation to support such thoughts by the decedent. The August 17-18, 2009 St. Joseph’s records do make a reference to the Dr. Beals interaction, but in this context: “51-year-old white male with excessive compulsive disorder which has become exacerbated since early August, and there is now a secondary depression due to this exacerbation and fulfillment of desired remission in a less than timely manner. In addition to this, his perceived abandonment, rejection, invalidation by Dr. Beals has been difficult for him to process.” When read in the St. Joseph’s records, it is clear that the decedent was suffering long before the August 17, 2009 office visit and rather than acting as the event that led him on the path to his suicide, was but one piece of an overarching, long-standing complex medical problem. Further, and the point that really undercuts plaintiff-respondent’s argument in this area – none of the subsequent medical records contain even a reference to Dr. Beals or the August 17, 2009 office visit. If one were to believe that this was the critical event (i.e. the abandonment and rejection) that led to the decedent’s downfall, it would certainly be expected that 9 some reference to this “devastating” (to the decedent) conduct would be mentioned somewhere. It is not. There is no mention of any reference to the decedent’s feelings of abandonment, or that he was humiliated by Dr. Beals, or that he was “cast adrift” by Dr. Beals. Rather, the records reveal that the decedent was struggling with his medications and it was those medications, and the care provided by a slough of other health care professionals that provide the intervening acts that break the causal connection between Dr. Beals and the decedent’s suicide. After that final office visit with Dr. Beals, the decedent was seen at St. Joseph’s Hospital, by his primary care physician, at CPEP, at Auburn Memorial Hospital (for 8 days as an inpatient), at the Brownell Center (twice), and by a private psychotherapist. Numerous drugs were administered to the decedent at varying dosages. The drugs and treatment and the complaints made by the decedent were far different from the time period with Dr. Beals (where the decedent was successfully managed on a therapeutic regimen of Paxil). After August 10, 2009 the decedent began to exhibit behavior and confess to thoughts that were consistent with an individual struggling with a severe illness. The decedent was so ill that he attempted to end his own life by hanging while an inpatient at Auburn Memorial Hospital. Further, on multiple occasions he told various providers that he wanted to end it all. Again, at this point the decedent was not the same patient that had enjoyed years of 10 successes under the care of Dr. Beals. This month long psychiatric care (at the hands of a number of different providers) provided to the decedent after Dr. Beals’ involvement in the decedent’s care ended constitutes an intervening act that breaks any causal connection between Dr. Beals’ alleged negligence and the decedent’s suicide. Dr. Beals simply never saw the decedent during the final 26 days of the decedent’s life. Dr. Beals never prescribed any medication to the decedent during the final 26 days of the decedent’s life. Dr. Beals was never made aware of the decedent’s repeated serious complaints of suicidal thoughts during the final 26 days of the decedent’s life. Dr. Beals was never presented with the opportunity to perhaps intervene and participate in the decedent’s care and because he was not, he cannot be held responsible for the decedent’s death under the care of other providers. Plaintiff failed to make out a prima facie case and because she did not, the case against Dr. Beals must be dismissed. POINT II THE TRIAL COURT ERRED IN PERMITTING THE OPMC CONSENT AGREEMENT AND ORDER TO BE ADMITTED The January 26, 2012 Consent Agreement and Order 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. This error deprived Dr. 11 Beals of a fair trial. The timing of the ruling and the language in the Consent Agreement and Order are critical. The January 26, 2012 Consent Agreement and Order charged Dr. Beals with four specifications of professional misconduct regarding thirteen patients (Patients “A”-“M”). Patient “A” is the decedent in this action. Dr. Beals thereafter signed a Consent Agreement and Order which stated: “I understand that the New York State Board for Professional Medical Conduct (Board) has charged me with four specifications of professional misconduct.” “I agree not to contest the allegations in the third specification as it applies to paragraphs B, C, D, E, F, G, H and its subparagraphs, I, J and its subparagraphs, K, L and M, in full satisfaction of the charges against me…” (emphasis added). (1367) Paragraphs “B”-“M” correspond to patients “B”-“M.” Patient “A” (Mr. Mazella) is specifically excluded from this consent agreement. Dr. Beals at no time agreed not to contest the allegations related to patient “A” and of course, the consent agreement reflects this. However, by agreeing not to contest the allegations in the third specification of charges as they apply to patients “B”-“M,” the allegations related to patient “A” (Mr. Mazella) were extinguished. There is nothing in the Consent Agreement and Order that suggests Dr. Beals admitted to negligence in the 12 care and treatment of any of those patients. He simply agreed not to contest the charges brought against him regarding patients “B”-“M.” (1367) The Consent Agreement and Order simply has nothing to do with patient “A.” It is not probative of any issue in dispute in this medical malpractice action. Despite this very clear language that the Consent Agreement and Order extinguishes the allegations as related to patient “A,” plaintiff-respondent takes a circuitous review of a number of cases and statutes that purport to stand for the proposition that this Consent Agreement and Order was properly admitted. However, the specific language in this particular agreement makes the admission of the document into evidence plain error. Plaintiff-respondent ignores the language and because that was done, her arguments are unpersuasive. From the outset, it was clear that the language in the Consent Agreement and Order rendered the document worthless in the malpractice action. Therefore, by motion in limine, Dr. Beals moved to preclude plaintiff from referencing or admitting the January 26, 2012 Consent Agreement and Order. (80a) This motion was denied by the trial court. (29-31) And it is at this point that the true harm to Dr. Beals was started and forms the basis for the injustice done to him at trial. In light of this ruling, defense counsel was put in the unenviable position of having the issue of negligence, i.e. deviation in the standard of care, taken away. Dr. Beals was forced 13 by the ruling to concede the issue of deviation. This was not simply a trial strategy decision where the risks and benefits of certain decisions were appropriately weighed and considered. No, here the decision to concede liability was effectively made by the Court’s denial of defendant’s motion. Dr. Beals faced irreparable harm from this decision and it permeated throughout the trial and resulted in an adverse verdict against him (c.f. verdict as to co-defendant Dr. Mashinic, which found negligence but no causation). As above, once the Court denied defendant’s pre-trial motion, Dr. Beals in fact conceded a deviation in the manner in which he followed the decedent in the ten years prior to August 2009. Based on the concession, defense counsel renewed the motion in limine regarding the admission into evidence of the OPMC Consent Agreement and Order. The renewal was made on the common sense premise that since the deviation was conceded, the consent agreement surely had no probative value. The case would be tried on the issue of causation. The request for relief was again denied by the trial court. (29-31) The Court’s determination and Dr. Beals’ decision to concede a deviation was made on the record. Thereafter, the concession was specifically communicated to the jury by the Hon. Brian F. DeJoseph in his introductory remarks prior to jury selection wherein he stated, “Dr. Beals concedes that the manner in which he renewed a prescription for Paxil was not consistent with 14 prevailing medical standards…” (3) The concession was further presented to the jury in the opening remarks of counsel for Dr. Beals (68-69) and counsel for the plaintiff. (55-56) That deviation was at the very heart of plaintiff’s case against Dr. Beals and once it was conceded, the issue was taken out of the jury’s hands. Dr. Beals did dispute causation and forged a defense predicated on the idea that his care and treatment for ten years prior to August 10, 2009 had no relationship to the decedent’s suicide in September 2009. Despite this (and despite the concession), plaintiff made the case against Dr. Beals on the issue of negligence and was permitted to inflame and prejudice the jury against Dr. Beals with repeated and numerous references to the OPMC Consent Agreement and Order which included provocative language like “gross negligence” and “gross incompetence” and “negligence on more than one occasion” and “incompetence on more than one occasion” and listed references to 13 separate patients. (1367-1374) Despite the fact that the consent agreement had nothing to do with Dr. Beals’ treatment of Mr. Mazella, the technicalities of the language and the consequences of the concession were likely lost on the layperson jurors. And as a result, Dr. Beals was denied a fair trial. The Consent Agreement and Order is Not Admissible As Presumptive Evidence of Negligence Plaintiff-respondent argues that the Consent Agreement and Order is 15 admissible as presumptive evidence of negligence. The argument set forth is that, “[b]ecause the Consent Order included Defendant Beals’ negligent treatment of patient A – the same treatment at issue in the instant civil trial – and punished him in part based on that treatment, …, the Consent Order was admissible at trial as presumptive evidence of Defendant Beals’ negligent treatment of patient “A,” Plaintiff’s decedent.” The fundamental flaw in the line of reasoning is that the Consent Agreement and Order has nothing to do with patient “A.” While the document contains allegations related to patient “A,” the actual agreement (executed by Dr. Beals) specifically excludes patient “A.” (1367) There is no finding of any “negligent treatment of patient “A”” in the consent agreement. There is no finding or concession of negligence as Dr. Beals merely agreed not to contest the charges. With respect to patient “A,” the agreement simply sets forth that the charges against Dr. Beals have been fully satisfied. The allegations regarding patient “A” were specifically extinguished as part of this agreement. If the consent agreement included some language that Dr. Beals agreed not to contest allegations in certain specifications as they applied to patient “A,” then that would be a different situation. But, there is no such language and Dr. Beals only agreed not to contest the allegations in the third specification as it applied to patients “B”-“M.” That distinction is critical and is constantly misapprehended by plaintiff-respondent. 16 It Is Improper to Prove That A Person Acted On A Particular Occasion By Showing That He Did A Similar Act On A Different, Unrelated Occasion Plaintiff-respondent’s next argument is that the Consent Agreement and Order is admissible as evidence of a similar act to establish negligence. Plaintiff-respondent concedes right up front that as a general rule this is absolutely improper. As a general rule, 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. Coopersmith v. Gold, 89 N.Y.2d 957 (1997); Matter of Brandon, 55 N.Y.2d 206, 210-211 (1982). While there are certain limited exceptions to this rule, none are present in the instant case. Nevertheless, an attempt is made to obfuscate the above arguments and the bright line rule against this sort of evidence. Plaintiff-respondent sets forth the proposition as follows: “In this case, the Consent order was admissible under the intent exception not to establish that Defendant Beals did not see Mr. Mazella for ten years, but because it was probative as to why there were no visits with Mr. Mazella, that is, as to who was at fault (emphasis in original). To accept this argument, one would to ignore two critical points. First, New York courts have refused to allow a plaintiff to introduce findings of the Office of Professional Medical Conduct of acts of a malpractice defendant that are unrelated to the plaintiff’s case. Cipriano v. Ho, 29 Misc.3d 952 (Sup. Ct. Kings Co. 2010); 17 Bargano v. Vaynshelbaum, 2005 N.Y. Slip Op. 30465 (Sup. Ct. New York Co. 2005). Second, we already know who was at fault as to why there were no visits with Mr. Mazella – Dr. Beals conceded a deviation with respect to the lack of follow-up care during those ten years. (68-69) It is worth noting that plaintiff-respondent attempts to couch this argument under an “intent exception” to the general rule regarding similar acts on different occasions. Plaintiff-respondent cites to Matter of Brandon, 55 N.Y.2d 206 as authority for this exception. Notably, the facts in that case relate to intentional wrongdoing in the form of an individual actively defrauding elderly individuals. The conduct at issue in this malpractice case is negligent conduct, not intentional conduct. The Brandon court stated that, “[w]here guilty knowledge or an unlawful intent is in issue, evidence of other similar acts is admissible to negate the existence of an innocent state of mind.” Id. at 211. Guilty knowledge or an unlawful intent is very clearly not in issue in this case. Plaintiff-respondent similarly advances an argument under a “common scheme” exception to the above rule. The argument presented is that, “[t]he Consent Order was also admissible under the common scheme or plan exception to establish negligence by admission. Accordingly, the Consent Order was admissible to establish that if he accepted responsibility and punishment for negligently treating any one of the 13 patients, then he accepted it for all of them, including Mr. 18 Mazella.” (emphasis in original). The mental gymnastics that this argument requires almost defies belief. First, the agreement very clearly sets forth in plain language that Dr. Beals agreed not to contest the charge in the third specification related to patients “B”-“M.” (1367) Therefore, he made an agreement regarding 12 patients, but that agreement specifically excluded 1 patient – patient “A.” Second, citation is again made to Brandon where in the Court stated, “Under this exception (common plan or scheme), evidence of collateral acts is admitted provided it is shown that the collateral acts are sufficiently connected with the act in issue such that each forms a part of a common plan on the part of the actor to achieve some ultimate result.” Id. at 212.(emphasis added). One is left to guess at what common plan existed and what ultimate result was anticipated. Again, this is not an action regarding intentional conduct, but a medical malpractice action base on negligence. There are no allegations of intentional harm. Further, to accept this argument, one would have to accept the idea that Dr. Beals intentionally acted against these 13 patients, as part of a concerted plan, to achieve some nefarious result. This is so far beyond the scope of anything in this action that one can not seriously consider it as an argument. There is no connection between the patients, there is no commonality between the treatment and there was no plan or anticipated result. Additionally, plaintiff-respondent again misunderstands the scope of the Consent Order and Agreement. The Consent Order 19 and Agreement is not admissible. The Consent Agreement and Order Is Not Admissible On The Issue of Credibility Although it is beyond frustrating to repeatedly make the same argument in response to plaintiff-respondent’s positions, it bears repeating that plaintiff-respondent fails to appreciate the effect and scope of the January 26, 2012 OPMC Consent Agreement and Order. Plaintiff-respondent begins this line of argument with the flawed proposition that “the Consent Order was admissible to impeach Defendant Beals on the independent ground that it was a disciplinary action against him, with terms of punishment bearing on his character and truthfulness.” The case law is replete with examples where cross-examination in this area is permitted but the underlying transactions must relate directly to “truth-telling.” None are applicable to the instant case. See Cipriano v. Ho, 29 Misc.3d 952 (Sup. Ct. Kings Co. 2010) (underlying suspension of physician’s license based on “found the Respondent unable to admit mistakes,” “faulted the Respondent for also trying to shift blame for [a] complication to another physician” was probative on issue of physician’s credibility); Torres v. Ashmawy, 24 Misc.3d 506 (Sup. Ct. Orange Co. 2009) (the commission of crimes involving dishonesty, such as theft, fraud and forgery demonstrate one’s willingness to place his own interests of society, thereby 20 impacting directly upon the issue of credibility); People v. Walker, 83 N.Y.2d 455 (1994) (a person who has used an alias when asked about his or her real identity has demonstrated a willingness to place his or her individual self-interest ahead of principle or the interests of society); Spanier v. New York City Transit Auth., 222 A.D.2d 219 (1st Dep’t 1995) (inquiry into allegations of improper billing was appropriate because it had a bearing on doctor’s credibility); Badr v. Hogan, 75 N.Y.2d 629 (1990) (court did not make a determination as to whether underlying conduct was proper subject for cross-examination but conduct related to plaintiff’s improper receipt of funds from the Social Services Department). The distinction between these cases and Dr. Beals’ case is straightforward – there are no factual findings or determinations related to dishonesty, theft, forgery or fraud and the like in Dr. Beals’ case. Such conduct would be probative of a truth telling, but is notably absent here. This Court in Badr v. Hogan, 75 N.Y.2d 629 (1990), stated the "general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility. While the nature and extent of such cross-examination is discretionary with the trial court … , the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue." Badr, at 635. The inquiry is "[w]hether the probative worth of evidence … on 21 the issue of credibility outweighs the risk of unfair prejudice." See Matter of Carlos V., 192 A.D.2d 661 (2d Dep’t 1993). Therefore, the fact alone of disciplinary action against a physician is not sufficient to permit its use on cross-examination, but rather the underlying findings and determinations must be probative on the issue of credibility, and weighed as such against the possibility of prejudice. The Cipriano court could not give sufficient, if any, probative value to the findings and determinations as to negligence. Cipriano, at 960. Without more, negligent acts or omissions do not "tend[] to show moral turpitude." See Badr, supra at 64. Plaintiff-respondent then attempts to make a leap and seize on language in Cipriano. The Court stated that “disciplinary action includes a penalty, however, and stated grounds for the penalty imposed. Cipriano, at 960. The Hearing Committee or ARB might justify a penalty with a determination that bears directly on credibility (See Torres v. Ashmawy, supra [revocation of license: "(n)ot only did Respondent practice grossly substandard medicine, he lied about it then and he continues to lie about it today"]) or with a determination that does not directly bear on credibility, but on a deficiency in moral character (See Matter of Sidoti, 55 A.D.3d 1162 (3d Dep’t 2008) [revocation of license: physician "evinc(ed) an indifference or lack of insight to the consequences of his actions" and "demonstrated 22 lack of insight or remorse"]). Id. In Cipriano, the Court noted that “the penalty imposed by the Hearing Committee and upheld by the ARB--a stayed two-year suspension of [the physician]'s license with probation--is not among the most serious that could be imposed, i.e., license revocation and fines, nor was it among the least serious, i.e., reprimand, further training and education. However, the ARB noted that the Committee ‘found the Respondent unable to admit mistakes,’ ‘faulted the Respondent for also trying to shift blame for [a] complication to another physician,’ and ‘concluded that the stayed suspension and probation would deter the Respondent from sidestepping total responsibility for his patients and promote requisite accountability.’ The ARB (Administrative Review Board) rejected the BPMC's (Bureau of Professional Medical Conduct) request that the penalty be changed from stayed suspension/probation to revocation; the BPMC had argued that ‘probation cannot teach the Respondent character and responsibility and … only revocation will protect the public.’ Cipriano, at 960. The Cipriano court concluded that these findings and conclusions revealed "a willingness or disposition" on the part of [the physician] "to place the advancement of his individual self-interest ahead of principle or of the interests of society." Cipriano, at 961, citing People v. Walker, supra. 23 There are no such provocative findings or conclusions in the January 26, 2012 Consent Agreement and Order. Far from the strong language found in the Cipriano case, the Consent Agreement and Order makes no reference to any findings about “failing to admit mistakes,” or “trying to shift the blame.” Dr. Beals was merely subjected to a censure and reprimand and placed on probation for three years. The terms of probation contained on the consent agreement are comprised of straightforward, boilerplate language that simply underscore the good practice of medicine and basically could be applied to all practicing physicians in New York State. Finally, the Consent Agreement and Order does not represent a party admission or inconsistent statement. Dr. Beals admitted nothing with respect to any of the patients, but again, merely agreed not to contest the charges in the third specification as it related to patients “B”-“M.” (1367) The agreement extinguished all charges related to patient “A.” Dr. Beals’ testimony is completely consistent with the OPMC documents. The OPMC documents are void of any findings, statements by Dr. Beals or agreements by Dr. Beals that pertain to the care of the decedent. (421a-427a) Even assuming, arguendo, that Dr. Beals had testified inconsistently with the OPMC documents, said documents should have only been admitted if Dr. Beals had been confronted with the specific inconsistent statement and he denied 24 making it. That did not take place here. Dr. Beals could have testified in any way that he wanted and said anything that he chose to say about the decedent and said testimony would not have been inconsistent with the OPMC Consent Agreement and Order. There was no reason for said documents to be admitted into evidence to impeach Dr. Beals. Their admission caused insurmountable prejudice to Dr. Beals that necessitates the verdict being set aside. Plaintiff finally erroneously argues that even if the admission of the OPMC Consent Agreement and Order was improper, it was harmless error because Dr. Beals conceded a departure from the standard of care during the trial anyway. However, plaintiff fails to acknowledge that Dr. Beals’ concession of a departure was prior to trial, but only made after the Court ruled that the OPMC Consent Agreement and Order would be admitted during the trial. Had the Court ruled to exclude said documents, the concession would have never been made. As such, the pre-trial ruling, on motion, by the Court to permit the OPMC Consent Agreement and Order into evidence in its entirety caused insurmountable prejudice to the defendant that necessitates that the verdict be set aside. CONCLUSION F or the foregoing reasons, the Order appealed from should be reversed, and the Judgment and 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: September 1, 2015 By: Respectfully submitted, Kevin T. Hunt, Esq. GALE GALE & HUNT LLC Attorneys for Defendant-Appellant William Beals, M.D. P.O. Box Syracuse, New York 13217 (315) 637-3663 25