Janice Mazella,, Respondent,v.William Beals, M.D., Appellant, et al., Defendant.BriefN.Y.June 2, 2016To be Argued by: ALESSANDRA DEBLASIO, 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 PLAINTIFF-RESPONDENT DELDUCHETTO & POTTER Attorneys for Plaintiff-Respondent One Lincoln Center Syracuse, New York 13202 Tel.: (315) 422-2763 Fax: (315) 476-8730 Appellate Counsel: ALESSANDRA DEBLASIO, ATTORNEY AT LAW 40 Exchange Place, Suite 2010 New York, New York 10005 Tel.: (212) 321-7084 Fax: (973) 689-2765 Date Completed: July 16, 2015 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii I. PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT ................................................................................................... 1 II. QUESTIONS PRESENTED ........................................................................... 6 III. NATURE OF THE MATTER ......................................................................... 7 IV. STATEMENT OF RELEVANT FACTS ...................................................... 10 A. Brief Overview of Decedent Joseph Mazella’s Life ........................... 10 B. Decedent Joseph Mazella’s Medical History ...................................... 11 1. 1988-1994: Depressive Episodes and Starting Medication ........... 11 2. 1998: Third Major Episode of Depression ..................................... 12 3. 2009: Fourth Major Episode of Depression and Suicide ............... 14 a) July 22 to August 11, 2009: Medications Doubled .................. 14 b) August 11-19: CPEP Visits and Admissions ............................ 16 c) August 19 - September 12: Auburn Admission and Subsequent Suicide ................................................................... 21 V. ARGUMENT ................................................................................................. 29 A. POINT I: The Court Properly Admitted the OPMC Consent Order and a Photograph of Mr. Mazella Shortly After His Suicide ................................................................................................. 29 1. Admissibility of Exhibit 3: OPMC Consent Order ........................ 29 a. OPMC Consent Order Was Subject to Disclosure ................... 31 b. Admissible as Presumptive Evidence of Negligence ............... 34 c. Admissible as Similar Act Evidence to Establish Negligence ................................................................................ 36 d. Admissible to Impeach the Credibility of Defendant Beals .......................................................................................... 42 ii i. The Examination of Defendant Beals ............................. 44 ii. “Malpractice” and “Negligence” .................................... 47 iii. Probative of Truthfulness ............................................... 50 iv. A Party Admission and Inconsistent Statement ............. 53 e. OPMC Consent Order Was Not Cumulative Evidence ............ 54 f. Questioning about the Consent Order Was Not Prejudicial ................................................................................. 56 2. Admissibility of Exhibit 8: Photograph of Mr. Mazella ................ 59 B. POINT 2: The Trial Court Properly Denied the Post-Trial Motion to Set Aside the Verdict as Allegedly Legally Insufficient, Relying on Plaintiff’s Expert’s Competent Medical Opinion Testimony ................................................................ 61 Standard of Review ............................................................................. 61 Discussion ........................................................................................... 62 1. Plaintiff’s Expert Was Qualified to State an Opinion as to Proximate Cause ................................................................... 63 2. Competent Evidence Supported Expert’s Opinions ................. 66 C. POINT 3: The Weight of the Evidence Supported the Jury’s Verdict that Defendant Beals Was Negligent and that His Negligence Was a Proximate Cause of Decedent’s Injuries ............... 74 Standard of Review ............................................................................. 74 Discussion ........................................................................................... 75 D. POINT IV: The Trial Court Properly Charged the Jury to Render a General Verdict as to Liability and Damages ...................... 88 Verdict Sheet as to Liability ................................................................ 88 Verdict Sheet as to Damages ............................................................... 96 VI. CONCLUSION ............................................................................................ 103 iii TABLE OF AUTHORITIES Page(s) Cases: Anonymous v. Bureau of Professional Medical Conduct/State Board for Professional Medical Conduct [hereinafter Anonymous v. OPMC], 2 N.Y.3d 663 (2004) ................................................................................ 32, 33 Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999) ........................................................................ 74, 75, 79 Cipriano v. Ho, 29 Misc. 3d 952 (Kings County 2010) ...................................................passim Cohen v. Hallmark Cards, 45 N.Y.2d 493 (1978) .............................................................................. 62, 73 Colao v. St. Vincent’s Medical Center, 65 A.D.3d 660 (2d Dep’t 2009) ..................................................................... 35 D’Ambrosio v. Dep’t of Health of State of New York, 4 N.Y.3d 133 (2005) ...................................................................................... 40 Davis v. Caldwell, 54 N.Y.2d 176 (1981) ........................................................................ 92, 93, 94 Holstein v. Community Gen. Hosp. of Greater Syracuse, 86 A.D.3d 911 (4th Dep’t 2011), aff’d 20 N.Y.3d 892 ................................. 75 Joyce v. Kowalcewski, 80 A.D.2d 27, 437 N.Y.S.2d 809 (4th Dep’t 1981) ...................................... 87 Kirby v. Kenmore Mercy Hosp., 122 A.D.3d 1284 (4th Dep’t 2014) ............................................................... 31 Kolbert v. Maplewood Healthcare Ctr. Inc., 21 A.D.3d 1301 (4th Dep’t 2005).................................................................. 94 Lacy v. Guthrie Clinic Ltd., 184 A.D.2d 1057 (4th Dep’t 1992) ............................................................... 61 Lolik v. Big V Supermarkets, 86 N.Y.2d 744 (1995) .................................................................................... 74 Lynch v. Bay Ridge Obstetrical and Gynecological Associates, P.C., 72 N.Y.2d 632 (1988) .................................................................................... 78 iv Maldonado v. Cotter, 256 A.D.2d 1073 (4th Dep’t 1998) ............................................................... 35 Matter of Brandon, 55 N.Y.2d 206 (1982) .............................................................................passim Nicholas v. Reason, 84 A.D.2d 915 (4th Dep’t 1981) ................................................ 61, 62, 65, 87 Noseworthy v. City of New York, 298 N.Y. 76 (1948) .................................................................................. 75, 86 People v. Molineux, 168 N.Y. 264 (1901) ................................................................................ 36-37 People v. Schwartzman, 24 N.Y.2d 241 (N.Y. 1969) ........................................................................... 43 Rohring v. City of Niagara Falls, 84 N.Y.2d 60 (1994) .................................................................................... 102 Sacchetti v. Giordano, 101 A.D.3d 1619 (4th Dep’t 2012) ............................................................... 61 Spano v. Onondaga County, 135 A.D.2d 1091 (4th Dep’t 1987) ......................................................... 74, 75 Stewart v. Olean Medical Group, P.C., 17 A.D.3d 1094 (4th Dep’t 2005).................................................................. 74 Suarez v. New York City Health & Hosps. Corp., 215 A.D.2d 287 (2d Dep’t 1995) .................................................................. 94 Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997) .................................................................................... 73 Winiarski v. Harris [appeal No. 2], 78 A.D.3d 1556 (4th Dep’t 2010).................................................................. 61 Statutes & Other Authorities: 2008 Sess. Law News of N.Y. Ch. 477 ................................................................... 33 CPLR § 4546 ............................................................................................................ 99 CPLR § 5501(b) ....................................................................................................... 62 v CPLR 4514 ............................................................................................................... 54 NY Education Law § 6530 ...................................................................................... 29 NY Education Law § 6530(a) .................................................................................. 58 NY PJI 2:150 ................................................................................................ 47, 49, 50 NY Public Health Law § 10(2) ................................................................................ 35 NY Public Health Law § 230 ............................................................................. 29, 31 NY Public Health Law § 230(10)(g) ................................................................. 32, 33 NY Public Health Law § 230(9) .................................................................. 31, 32, 33 I. PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT This civil action arises from the death of Plaintiff-Respondent Administratrix’s husband Joseph Mazella, age 51, on September 12, 2009, in Syracuse, New York. Plaintiff charged two physicians, William Beals, M.D., and Elisabeth Mashinic, M.D., with negligence in their treatment of Mr. Mazella, including their negligently prescribing and monitoring medications known to heighten suicidality, which negligence contributed to his death by suicide. On November 20, 2012, a jury in Onondaga County found both Defendant-Appellant Beals and Co-Defendant Mashinic negligent, but determined that only Defendant Beals’s negligence was a substantial factor in causing the death. Mr. Mazella, a beloved high school sports coach and vice-principal, began to see Defendant Beals for treatment in 1993. Defendant Beals diagnosed him with major depression, obsessive-compulsive disorder and generalized anxiety, and prescribed the anti-depressant Paxil continuously for more than ten years, without monitoring, or re-evaluating his diagnosis. From 1998 until shortly before Mr. Mazella’s death in 2009, Defendant Beals never met with him to discuss or observe the psychiatric condition he was allegedly treating; nor, from 2002 onward, did he even bother to ask Mr. Mazella how he was doing when re-filling his prescriptions by telephone. From 2002 until August 2009, not a word passed between the lips of Defendant Beals and his patient Joe Mazella. 2 When Mr. Mazella then suffered an episode of increased anxiety and depression in early August 2009 and called Defendant Beals, the doctor’s response was in line with his years of patient-neglect, it fell below the acceptable standard of care. Sight unseen, hundreds of miles away, Defendant Beals hazardously doubled the anti-depressant Paxil and added the anti-psychotic Zyprexa, previously untried on this patient. Mr. Mazella went into a tailspin and then Defendant Beals dismissed him as a patient. In a critical state, Mr. Mazella struggled and he sought out help elsewhere, but he came under the negligent care of Co-Defendant Mashinic and was never able to recover. Defendant Beals argues on this appeal that Co-Defendant Mashinic’s negligence was an unforeseeable, superseding cause of the suicide, which severed any possible causality between his own negligence and the suicide. The jury, upon requesting to hear again the definitions of negligence and proximate cause, made an informed and deliberate decision that the evidence, including competing medical expert opinions, supported Plaintiff’s claim as to Defendant Beals, but ultimately not as to Co-Defendant Mashinic. On separate appeals to the Appellate Division, one panel by majority decision affirmed the jury’s finding that Defendant Beals’s negligence was a proximate cause of the suicide (No. CA 13-01421), and another panel unanimously affirmed the jury’s finding that Co-Defendant 3 Mashinic’s negligence was not a proximate cause of the suicide (No. CA 14- 00291). It remains Plaintiff’s theory on this appeal that Defendant Beals’s negligent actions and inactions over many years, right up until the time of death, comprised a single continuous deviation from the accepted standard of care of a family practitioner prescribing anti-depressant and anti-psychotic medications to a patient. The ten years of prescribing medication without any visits – the final six devoid even of phone-call updates – contributed to Mr. Mazella’s relapse in early August 2009. In failing for years to monitor Mr. Mazella, Defendant Beals was unable to keep the episodic nature of the underlying disease at bay, or to catch and contain an episode before it escalated. Mr. Mazella’s relapse in early August 2009 led to his final visit with Defendant Beals on August 17, which led directly to in-patient hospitalization, an attempted suicide on August 20, and a completed suicide on September 12. The countless actions and inactions of Defendant Beals in his professional relationship with Mr. Mazella over the course of more than a decade were not separate, distinct or divisible. Further, it remains Plaintiff’s theory that the need for the in-patent hospitalization – and the subsequent negligent treatment that occurred therein and thereafter by Co-Defendant Mashinic – was a direct and foreseeable result of 4 Defendant Beals’s years of negligent treatment. But for Defendant Beals’s negligence, Mr. Mazella never would have come under Co-Defendant Mashinic’s negligent care. Specifically, when Defendant Beals abruptly dismissed Mr. Mazella as a patient on August 17, 2009 – without a psychiatrist in place to monitor his medications – Mr. Mazella was so humiliated, distraught and decompensated that he told his wife he needed a physician to watch over him right away because he was afraid he would kill himself. They went to a psychiatric emergency room and, unable to stabilize him, medical caretakers there placed him into in-patient care under the supervision of Co-Defendant Mashinic. Co-Defendant Mashinic’s negligent treatment did not sever or abate Defendant Beals’s negligence, but rather continued and extended it, as she failed to stabilize Mr. Mazella on a new medication regime, and then similarly discharged him without a physician in place to closely monitor his adjustment to those newly- prescribed drugs. That Co-Defendant Mashinic would commit such medical negligence was foreseeable, particularly given the mental condition in which Mr. Mazella arrived into her care, after more than ten years with Defendant Beals. “Cast adrift at sea” by Doctors Beals and Mashinic, as Plaintiff’s medical expert described the situation, Mr. Mazella spent the two weeks following his discharge from in-patient care without medical oversight, diligently taking his medications as negligently prescribed, completely decompensating and sinking 5 into a medication-induced state of frenzy so profound he could no longer bear to live, not even for the sake of his three children whom he adored. When Mr. Mazella went into his garage on September 12, 2009, it was not his underlying disease that dragged him in there and it was no coincidence that he killed himself when he did. When Mr. Mazella walked into that garage alone and unmonitored, as his wife showered, he was a man medically crippled by the treatment he received at the hands of Defendant Beals and follow-up psychiatrist Co-Defendant Mashinic. With a knife in his hand, Mr. Mazella slit his own throat, putting a quick but violent end to his life, which Plaintiff’s medical expert testified was indicative of individuals in the throes of medication overload. The jury reached its verdict on a fair interpretation of the evidence, finding Plaintiff’s expert’s opinions more credible than those of his opponent in their prototypical experts’ battle. The admission of an Office of Professional Medical Conduct Order, which punished Defendant Beals in 2012 for the negligent treatment of 13 patients including Mr. Mazella – to which Defendant Beals consented – was proper, as was admission of a single photo of the decedent shortly after his death. Finally, as Plaintiff’s case against Defendant Beals involved a single charge of more than ten years of continual negligence, a special verdict sheet parsing the negligence into three or four incidents to suit Defendant Beals’s theory of the case was neither necessary nor appropriate. 6 II. QUESTIONS PRESENTED A. Whether the trial court properly admitted over Defendant-Appellant’s objections an Office of Professional Medical Conduct Consent Order and Agreement to which Defendant Beals was a party, as well as a photograph of the decedent. That is, whether admission of the Consent Order was proper as presumptive evidence of negligence, and/or as similar act evidence to establish Defendant Beals’s intent and common scheme or plan, and/or to challenge Defendant Beals’s credibility. The Appellate Division concluded that even assuming, arguendo, that the court erred in admitting the documents in evidence, any error was harmless. (2540) B. Whether there was a valid line of reasoning supporting the jury’s verdict that Defendant Beals’s deviation from the applicable standard of care in his treatment of Plaintiff’s decedent was a proximate cause of decedent’s injuries, such that the Supreme Court’s denial of defendant’s post-trial motion, seeking to set aside the verdict on the ground that Plaintiff had failed to establish a prima facie case of medical malpractice, was proper. The Appellate Division concluded that there was a valid line of reasoning supporting the jury’s verdict. (2539) C. Whether the jury’s acceptance of Plaintiff’s case was a rational and fair interpretation of the evidence establishing that Defendant Beals deviated from the applicable standard of care and that such deviation was a proximate cause of Plaintiff’s decedent’s injuries, such that the Supreme Court’s denial of defendant’s post-trial motion, seeking to set aside the verdict as against the weight of the evidence, was proper. The Appellate Division concluded that the jury’s acceptance of Plaintiff’s case was a rational and fair interpretation of the evidence. (2540) D. Whether the trial court properly charged the jury to render a general verdict as to both liability and damages, as opposed to submitting a special verdict sheet at Defendant Beals’s request; or, if not proper, whether the error was not prejudicial and does not require a new trial. The Appellate Division concluded that the court’s failure to submit a special verdict sheet was not prejudicial. (2540) 7 III. NATURE OF THE MATTER On June 16, 2010, Mrs. Janice Mazella as Administratrix of the estate of her husband instituted this medical malpractice wrongful death action in Onondaga County, New York, against Defendant doctors William Beals and Elisabeth Mashinic. (53a-58a) (All such references in parentheses correspond to page numbers in the Record on Appeal. A semi-colon between numbers separates the testimony of different witnesses and/or exhibits.) On October 31, 2012, Defendant Beals filed a motion in limine to preclude Plaintiff from questioning him about an Office of Professional Medical Conduct Consent Order and Agreement to which he was a party, and from offering into evidence a photo of the deceased shortly after his suicide, among other issues not relevant to this appeal. (84a-88a) On November 2, Plaintiff Mazella filed an opposition to the motion. (456a-473a) On November 3, Defendant Beals filed a reply. (474a-480a) On November 7, just before the beginning of trial, the Honorable John C. Cherundolo, Justice of the Supreme Court, heard argument on the motion following which he denied it with respect to admission of the Consent Order and photo. (28-40) The 10-day jury trial began on November 5, 2012. (1-2446) At the completion of Plaintiff’s case, Defendant Beals moved to dismiss for failure to prove a prima facie case; the court denied the motion. (861-64) Defendant Beals 8 renewed his motion upon submission of all the evidence; the court denied it. (1200) The jury deliberated from November 19 to November 20, during which time the jurors sent out four substantive notes, two with questions for the court concerning proximate cause and negligence, one asking to see the records of the hospital where Co-Defendant Mashinic treated Mr. Mazella, and one requesting the economic breakdown. (2442-45) On November 20, 2012, the jurors returned a verdict finding both Defendant Beals and Co-Defendant Mashinic negligent in their treatment of Mr. Mazella. (2434 & 2436) The jury found that Defendant Beals’s negligence was a proximate cause of Mr. Mazella’s death, but that Co-Defendant Mashinic’s negligence was not. (2435 & 2437) The jury awarded Mr. Mazella’s wife $800,000; his daughter Alicia $200,000; his daughter Leah $100,000; and his daughter Marissa $100,000; Mr. Mazella’s daughters were 18, 23 and 25 years old respectively at the time he died. (2439) The jurors indicated that the damages were intended to compensate Janice Mazella and the Estate of Joseph Mazella for five years. (2440) On December 19, 2012, Defendant Beals moved to set aside the verdict, which Plaintiff opposed. (2447-80) On January 31, 2013, Plaintiff moved for an Order granting judgment. (2481-87) On February 15, 2013, Defendant Beals 9 cross-moved for an Order adjusting the amount of the judgment, which Plaintiff opposed. (2488-2529) On March 18, 2013, the trial court issued a Decision and Order denying Defendant Beals’s motion to set aside the verdict, granting Plaintiff’s motion for judgment, and denying Defendant’s cross-motion for an order adjusting the amount of the judgment. (5a-15a) On April 29, 2013, judgment entered 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 from February 1, 2013 into the future. (19a-34a) On May 13, 2013, an amended judgment entered to correct a typographical error in the date, such that the daily rate of interest would run from February 21, 2013. (38a-52a) Defendant Beals appealed to the Appellate Division, Fourth Department, which affirmed the Amended Judgment by a vote of three Justices to one, the Honorable Nancy E. Smith dissenting. (2539-2545) This Court granted permission for Defendant Beals to appeal from the Order of the Appellate Division. (2537-2538) 10 IV. STATEMENT OF RELEVANT FACTS A. Brief Overview of Decedent Joseph Mazella’s Life Joseph Mazella was born on May 3, 1958, and he died at the age of 51 by suicide, on September 12, 2009. (1862; 1988) Mr. Mazella grew up in Syracuse, New York, where he attended high school and met his future wife Janice (the Plaintiff Administratrix). (202) He went on to receive undergraduate and master’s degrees and, in 1983, he and Janice married. (201-02) Mr. Mazella began working for the Syracuse school district in 1980 as a physical education teacher and coach and, in 2002, he became a Vice-Principal at a local high school, remaining in that position until his death. (202-03) He and his wife had three daughters. (201-02) Much of his adult life, Mr. Mazella suffered from allergies, recurrent infections and a depressive disorder. He had his first serious panic attack in the early 1980s (203-04), but he did not begin taking stabilizing medication regularly until his second major episode in 1988 (2034; 1925). In 1993, he suffered a third serious bout of depression and Defendant Beals began treating him. (1878-79; 1923-25) The fourth and final major episode occurred in August and September of 2009. (206; 1945) He committed suicide on September 12, 2009 and, days later, local newspapers estimated that 12,000 to 14,000 people attended his wake. (104) 11 B. Decedent Joseph Mazella’s Medical History 1. 1988-1994: Depressive Episodes and Starting Medication In 1988, following a prostate infection and several sinus infections for which he took antibiotics, Mr. Mazella had a panic attack with heart palpitations; it was designated “a major depressive episode.” (203-04; 1925) He received a prescription for XANAX (943, 947; 1879; 2034), and subsequently switched to LOPRESSOR and ELOVIL. (1879; 2033-34) His symptoms subsided and he “gradually wean[ed] off all of his medications.” (2033; see also 1921) One physician made note at the time of his “chemical hypersensitivity.” (2033) In October 1993, Mr. Mazella had a second serious panic attack and went to a psychiatrist, who prescribed the anti-anxiety medication KLONOPIN, and then he saw his family physician, Dr. Peter Becker. (204; 1923, 1925; see also 1879) That same month, Mr. Mazella decided to get psychiatric help and he obtained a referral from his employer to see Defendant Dr. William Beals, a general practitioner, who specialized in treating individuals with anxiety, depression and attention deficit disorder. (125; 938-39; 1883; 1925) Defendant Beals diagnosed Mr. Mazella as suffering from major depression, obsessive-compulsive disorder and generalized anxiety. (945, 948-49) Defendant Beals reduced the KLONOPIN and started Mr. Mazella on 20 milligrams of PAXIL. (1876 & 1878) Ten days later, in early November 1993, he 12 discontinued the KLONOPIN and raised the PAXIL dosage to 30 mg. (962; 1876; 1925) Subsequently, Mr. Mazella’s family physician noted that there was “progressive improvement in his mood.” (1070; 1925) In April 1994, Defendant Beals began to taper Mr. Mazella off the PAXIL and told him to discontinue it altogether by May 15, 1994. (969; 1877) 2. 1998: Third Major Episode of Depression On March 31, 1998, Mr. Mazella again suffered an onset of depression and his family physician Dr. Becker re-started him on PAXIL at 20 mg. (971; 1930) Two days later, Dr. Becker doubled the PAXIL to 40 mg and added the anti- anxiety prescription KLONOPIN. (1929) Five days later, on April 7, Mr. Mazella returned to Dr. Becker: he was unable to sleep, he had feelings of hopelessness, and he “was lying in the fetal position on the examining table . . . [and] became tearful.” (Id.) Dr. Becker’s assessment was that he was “unable to tolerate the long-acting” anti-anxiety benzoate (KLONOPIN) and so he switched him to “a shorter acting benzo [LORAZEPAM, aka ATIVAN] while continuing the current [40 mg] dose of his PAXIL.” (Id.) On April 7, 1998, at Dr. Becker’s referral, Mr. Mazella returned to see Defendant Beals, whom he had not seen since 1994. (971) Defendant Beals concurred with Dr. Becker’s medication dosages and discussed with Mr. Mazella the need for him to stay on the LORAZEPAM/ ATIVAN for 10 days to two weeks “until therapeutic effects of PAXIL could be 13 established.” (973; 1892-93) He remained on 40 mg of PAXIL, and was tapered off the LORAZAPAM/ATIVAN and told to discontinue it on May 22, 1998. (977; 1893 & 1890) On May 23, 1998, in the midst of another prostate infection for which he was taking the antibiotic CEFTIN, Mr. Mazella called Defendant Beals because he was starting to feel more “anxious” and “hopeless.” (979; 1890) Defendant Beals increased his PAXIL dosage to 50 mg. (Id.) In “acute distress” two days later (1450), and sitting in a graveyard with suicide ideation (979-80, 1050; 1436-37; 1890), Mr. Mazella’s wife took him to the emergency room of St. Joseph’s Hospital and to the hospital’s Comprehensive Psychiatric Emergency Program (“CPEP”), where he received a prescription for the sleeping aid AMBIEN (980; 1434-53; 1890-91). On June 2, 1998, the Mazellas visited Defendant Beals, and Mrs. Mazella questioned the amount of PAXIL her husband was taking; Defendant Beals reduced the dosage to 30 mg and switched sleeping aids. (981-84; 1891) In July 1998, Mr. Mazella had another prostate infection and, again on the antibiotic CEFTIN, he called Defendant Beals to say that he was again “anxious.” (985; 1888) Defendant Beals kept the PAXIL at 30 mg and increased the dosage of the sleeping aid TRAZADONE. (Id.) In August 1998, Mr. Mazella complained about 14 being “in a fog on” the PAXIL, but doing well with the TRAZADONE; Defendant Beals reduced the PAXIL to 20 mg. (986, 989; 1889) For the next 11 years, from August 1998 through August 2009, Mr. Mazella remained on 20 mg of PAXIL, without once seeing Defendant Beals during that time. (205; 1886, 1889) Defendant Beals would renew his patient’s prescriptions by telephone or facsimile and, on occasion, from 1998 to 2001, he might ask Mr. Mazella on the phone about his condition. (170-72; 992) From 2002 to 2009, there was not a single phone call between them with any discussion about his condition. (171-72; see also 992) During that same eleven year span, Mr. Mazella visited his family physician, Dr. Becker, at least twice a year for general physical examinations and allergy injections. He also visited and called Dr. Becker about a few bouts of pneumonia, various recurrent infections, an outbreak of shingles and chronic back pain for which he had surgery in 2002. (1935-80) 3. 2009: Fourth Major Episode of Depression and Suicide a) July 22 to August 11, 2009: Medications Doubled On July 22, 2009, Mr. Mazella went to his family physician for one of his semi-annual routine visits and complained of sinus congestion. (336; 1943) He was prescribed the antibiotic CEFTIN for eight days. (1943) He called the doctor six days later because, just as after taking CEFTIN in May 1998, he “wasn’t 15 feeling well” and he thought the medication was “not working.” (1944) That same day he was taken off the CEFTIN and put on the antibiotic AVELOX, completing the prescription on August 4. (1944) Five days later, on Sunday August 9, 2009, Mr. Mazella called Defendant Beals, with whom he had not spoken in many years, complaining that he had been anxious for about five days. (206; 1002) Defendant Beals had noticed that Mr. Mazella would “often” suffer increased anxiety “when he was having a physical ailment,” such as his recent sinus infection. (161-62) Defendant Beals, who at the time was on vacation hundreds of miles away in Cape Cod, without the benefit of his medical chart, did not refer Mr. Mazella to a covering psychiatrist; instead, he added the anti-psychotic medication ZYPREXA for anxiety and doubled the PAXIL from 20 mg to 40 mg., and relied on Mrs. Mazella to monitor him. (141; 206-07; 1002; 1886; 1945) Without the benefit of his chart, he could not see his notes from April 7, 1998 (eleven years earlier), indicating a recurrence of suicidal thoughts when days before Dr. Becker had similarly doubled the PAXIL and added an anti-anxiety prescription. (1892) That evening, Mr. Mazella took the doubled dose of PAXIL and one dose of ZYPREXA consistent with what Defendant Beals prescribed. (207) On the next day, Monday August 10, just as in April 1998, Mr. Mazella felt very unwell; he was pale, “nauseous” and “light-headed.” (207) He called Defendant Beals and 16 told him he had a burning feeling and was tired and foggy; Defendant Beals told him to double the ZYPREXA. (208; 1007, 1035; 1945) Defendant Beals said he would call him the next day. (213; 1007) He took his doubled dose of PAXIL and the double dose of ZYPREXA as directed. (208; Ex. 4 at 1525 & 1548) The next day, on Tuesday August 11, Mr. Mazella woke up and his symptoms were “more pronounced.” (209) He was lightheaded, his hands were tingling, he had an upset stomach, he was nauseous and could not eat, and he was pale despite his dark suntan. (Id.) Despite his condition, Mr. Mazella went into work, and early in the afternoon a co-worker called Mrs. Mazella to say that her husband did not feel well, that he was complaining of chest pains and his heart racing, and that he would drive Mr. Mazella home. (Id.) Mr. Mazella momentarily passed out in his driveway. (1945) At home, he complained to his wife about his heart, that he was faint and nauseous; thinking that her husband was having a heart attack, Mrs. Mazella called his mother and together they took him to St. Joseph’s Hospital emergency room. (209-10) b) August 11-19: CPEP Visits and Admissions During that August 11, 2009 visit to St. Joseph’s Hospital, Mr. Mazella stayed overnight. (1514-1612) Emergency room nurses’ notes indicate that Mr. Mazella told them his medications were increased (by Defendant Beals) the past several days without relief and that his mind was “shot.” (1604) Emergency room 17 staff determined that Mr. Mazella needed to be observed for suicide risk and arranged for his transfer to the psychiatric unit CPEP. (1598) Upon admission to CPEP, Mr. Mazella complained to the intake clinician that his “body [was] on fire inside,” and that if he had a gun he would shoot himself. (1535) He then complained to a nurse: “I can’t sleep, I can’t control my thoughts, I have to die, I can’t live like this.” (1594) That evening at CPEP, they gave Mr. Mazella ATIVAN, a shorter-acting anti-anxiety medication than the ZYPREXA Defendant Beals had given him, following which he slept well. (1526) Subsequently, a CPEP physician spoke with his family, telling his wife to “throw the ZYPREXA out,” that she was not to give her husband any more of it, and that he should not have had his PAXIL doubled and that they were lowering the dosage to 30 mg. (211; 1526, 1590) On August 12, CPEP physicians reduced the PAXIL to 30 mg and discontinued the ZYPREXA, giving Mr. Mazella the anti-anxiety medication KLONOPIN instead. (1519, 1526-27, 1590-91) Upon his discharge that day, Mr. Mazella went directly to his family physician Dr. Becker. (1518; 1945) He complained to Dr. Becker of anxiety, depression, tearfulness, the abrupt onset of bizarre and disgusting thoughts, and suicide ideation. (1945) Dr. Becker assessed his condition as one of “[a]nxiety consistent with mania followed by more depressive symptoms,” noting his suspicion “in view of his prior history” that Mr. 18 Mazella had “bipolar disorder.” (Id.) Dr. Becker advised him to continue on the 30 mg of PAXIL and the KLONOPIN. (Id.) The remainder of the week, Mr. Mazella continued fairly stable. On Monday August 17, Defendant Beals was back from vacation and Mr. Mazella and his wife went to a scheduled appointment with him; they had not seen each other in 11 years. (211; 1009; 1867, 1874-75, 1884, 1887) The visit did not go well. (212-15) According to Mrs. Mazella, when they arrived, her husband “was competent, he was strong, . . . feeling better”; when they left, “he was a crumbling mess.” (215) After only a few moments into the visit, Defendant Beals had to call Mrs. Mazella to come in from the waiting room, as her husband had gone from calm to weepy. (212; 1010) Defendant Beals began yelling at both of them for going to CPEP on August 11, instead of waiting for his promised 5:00 p.m. telephone call. (212-13) According to Mrs. Mazella, Defendant Beals began saying degrading and hurtful things to Mr. Mazella, including accusing him of not taking medication one time 11 years earlier because he “couldn’t get an erection.” (213) Mr. Mazella responded by hiding his head in his shirt and sobbing. (213; 1012; 1887) According to Defendant Beals, he asked three times if Mr. Mazella could assure him that he would not act on his suicidal thoughts, but Mr. Mazella could not do so. (1012) According to Mrs. Mazella, Defendant Beals was extremely 19 angry and stood up, waved them off, turned his back and threw them out of his office, saying: “Just go to CPEP. That’s where you belong.” (214; 1884) According to Defendant Beals, he raised his voice because the background noise was loud and because he thought that the Mazellas were having difficulty appreciating what he was saying, which was to go to CPEP because he could not be sure that Mr. Mazella would not act on his suicide thinking. (1015) Defendant Beals did not say good-bye, he did not acknowledge their leaving, he never called them, and they did not call him because they felt he wanted nothing further to do with them. (215) When they left Defendant Beals’s office, Mr. Mazella told his wife that he had to go to CPEP because “somebody has to take care of me because I can’t go without somebody watching.” (215) Mr. Mazella went back to CPEP that day, August 17, and stayed overnight. (216; 1386-91, 1417-18, 1430-33, 1455-98) During the afternoon of August 17, Mr. Mazella told medical personnel at CPEP that if they had a gun “right now I’d kill myself.” (1404) CPEP staff restricted his access “to lethal means of suicide,” and placed him on 15-minute safety checks for 27 hours. (1409, 1467-68, 1478-79) On August 18, Mr. Mazella complained of feelings of hopelessness and worthlessness, and reported to a psychiatrist at CPEP that he would kill himself “by any means possible.” (1418, 1471, 1477) Later in the morning, CPEP staff 20 gave Mr. Mazella KLONOPIN and a 10 mg increase in PAXIL to 40 mg, to which a psychiatrist also added the anti-psychotic medication RISPERDAL. (216-17; 1463, 1491) Mr. Mazella soon felt “awful” and told his wife that he felt “like my head is just detached. I don’t feel it’s like even part of my body.” (217) Mrs. Mazella subsequently refused to let them give him any more RISPERDAL until she spoke with CPEP’s chief of psychiatry, Dr. Laura Leso. (217) After speaking with Dr. Leso, CPEP did not administer any more RISPERDAL. (218) CPEP discharged Mr. Mazella later that day and he continued feeling agitated, lightheaded, tingly, and expressed disbelief to his wife at how Defendant Beals had treated them. (218-19) On the next day, August 19, after a restless night, Mr. Mazella was pacing, “he was like jumping out of his skin”; and, as Mrs. Mazella testified, he put his cap on “because he said his head felt so lightheaded, he didn’t feel like his head was part of his body and it’s the only way we can keep it together. So, we put a baseball cap tight, tight as it could go.” (220) Mr. Mazella wanted to go out, but his wife would not let him go without her and as she was in her pajamas, she called her parents to come help. Mr. Mazella hugged his wife’s father, and said: “You have to help me. I can’t – something is definitely wrong with me.” (221) He took his 40 mg of PAXIL and KLONOPIN (1390), and the family then took Mr. 21 Mazella right back to CPEP that August 19 morning (221; 1378-85, 1392-97, 1399-1416, 1419-27). At CPEP, Mr. Mazella was “despondent [and] tearful” during an interview, reporting to a clinician that he was suicidal and that “he was opening drawers to try and get pills this morning but his wife kept stopping him.” (1404) They administered ATIVAN “for high anxiety upon arrival” and placed him on 15- minute safety checks for nearly 12 hours. (1392, 1395, 1421) That evening, CPEP transferred him as an involuntary admission to the psychiatric unit at Auburn Memorial Hospital with discharge instructions to take KLONOPIN that night and again in the morning with his PAXIL, but not to take RISPERDAL. (1382-83; 1668-1676) c) August 19 - September 12: Auburn Admission and Subsequent Suicide Mr. Mazella arrived at Auburn hospital during the evening of Wednesday August 19, 2009 and stayed until August 27. (1613-1859) Throughout his hospitalization, Mr. Mazella remained anxious and depressed and suicidal. On admission, the hospital notes indicated excessive anxiety, pacing, reduced appetite, and reduced sleep. (1679) The notes did not vary greatly from day to day. During the course of his stay, Co-Defendant Elisabeth Mashinic was his primary doctor. He first saw her on August 20, in the afternoon. (1617-19, 1731) Co-Defendant Mashinic wrote in her examination report that she encountered him 22 “sitting at his desk in his room with his head in his hands.” (1618) “Even from the doorway it is obvious how restless he is.” (Id.) Mr. Mazella told her about his anxiety, guilt, depression, intrusive thoughts, delusions of worthlessness and suicidal ideation, stating that he would kill himself, but that he wanted to live for his wife and children. (1617-18) “Ultimately,” she wrote, “he threw himself on the floor and begged me to give him medication that would help him sleep and ‘relieve me from my suffering.’” (1617) On August 20, Co-Defendant Mashinic reviewed records from CPEP, noting in her report that he was currently on 40 mg of PAXIL and KLONOPIN, that he had been “stable on PAXIL for many years,” and that he would “need his medications adjusted.” (1617-18) That day, Co-Defendant Mashinic prescribed 40 mg of PAXIL, the anti-anxiety medication KLONOPIN, the anti-psychotic ZYPREXA “[for] agitation/anxiety,” and both GEODON and ATIVAN “for agitation/anxiety.” (1632, see also 1729) At 9:00 in the evening, she discontinued the one-on-one suicide watch upon Mr. Mazella’s agreement “to seek help from staff.” (1633, 1734) Later that night, Mr. Mazella tied the belt of his hospital gown around his neck and tried to kill himself. (181; 1633) On August 21, Mr. Mazella complained of depression, and he refused to participate in group activities. (1684) Co-Defendant Mashinic re-started the one- on-one suicide watch, and ordered the immediate discontinuance of all PAXIL, the 23 commencement of the anti-depressant EFFEXOR XR, as well as the re- administration of the anti-psychotic RISPERDAL, and wrote that Mr. Mazella be given XANAX if his anxiety increased. (1624, 1633) According to Mrs. Mazella, she mentioned to Co-Defendant Mashinic that a physician at CPEP had said that her husband should not take RISPERDAL; she prescribed it anyway, but promised not to send him home on it. (227) On August 22, according to the nurses’ notes, Mr. Mazella complained of depression, and doctors added AMBIEN to his medication regime for insomnia. (1633, 1753-54) On August 23, Mr. Mazella continued to feel depressed and anxious, and complained that he felt “cloudy” and that he could not think straight, but he did manage to participate in group activities. (1686, 1767) Doctors discontinued the AMBIEN, and switched him to TRAZODONE for his insomnia. (1634) On August 24, Mr. Mazella told a hospital social worker that he was finding it “difficult to relax” and that he was “struggling to try to slow down.” (1708) Co- Defendant Mashinic increased the level of the anti-depressant EFFEXOR XR. (1634) On August 25, according to nursing notes, Mr. Mazella displayed the same signs as he did upon admission, including “pacing the unit,” difficulty sleeping, and no appetite. (1789, 1794) That afternoon, Mr. Mazella walked out of two group activities and told a nurse: “I am still depressed.” (1689, 1789) According 24 to Co-Defendant Mashinic’s notes, he told her that he was “afraid to go home,” that he had “no confidence in himself.” (1626) According to Mrs. Mazella, her husband said: “I cannot go home taking this medicine. I cannot leave this hospital taking medicine like this.” (228) On August 26, the nurses’ notes stated that Mr. Mazella was “still feeling depressed,” and he did not participate in group activities. (1691, 1800) A nurse told him that “sometimes it takes 10 days to 2 weeks” for medication to start working. (1800) According to Mrs. Mazella, her husband told the discharge social worker that he was not ready to go home. (229) On August 27, the date of discharge, nursing notes indicated that Mr. Mazella reported he was not ready to go back to work, that he was not functioning 100%, and that he understood the medications take time to take their full effect. (1811) In her discharge summary, Co-Defendant Mashinic wrote: “By the date of discharge, depressive symptoms had completely resolved.” (1615) She gave Mr. Mazella a 30-day supply of EFFEXOR XR, RISPERDAL, KLONOPIN and TRAZODONE. (199; 229-30; 1616, 1821) According to Mrs. Mazella, he took the medications as instructed. (627) Co-Defendant Mashinic left a hospital social worker to arrange for follow- up medical treatment. (195; 1616, 1819) The social worker contacted six 25 psychiatrists, not one of whom was taking new patients, and he left telephone messages for two others. (196; 1627-28) He then arranged for Mr. Mazella to see an intake social worker one week later, on September 3, at the Brownell Center for Behavioral Health, an outpatient mental health clinic. (577-78; 627; 1628, 1819) Co-Defendant Mashinic approved the follow-up plan, without any physician in place to monitor Mr. Mazella’s tolerance to the medications and/or any change in condition. (196) From August 27 to September 3, Mr. Mazella was at home with his wife, very restless, agitated, he paced a lot, and it was difficult for him to engage in his typical activities. (627) In addition, he kept telling his wife that he felt that his head was “on fire,” and that “if he could just open his head up and hose it down and close it back up, he might feel better.” (632) On September 3, Mr. Mazella went with his wife for the initial diagnostic evaluation at the Brownell Center. (627-28) At that time, its screening and intake process typically took four weeks before acceptance of a client and a first appointment with a medical doctor. (600-01) The September 3 prescreening assessment note of non-medical intake social worker Kathleen Adamek indicated that Mr. Mazella was experiencing severe depression including hopelessness, constant crying, suicidal thoughts, worthlessness, inability to concentrate, “disgusting” obsessive thoughts, anxiety, 26 problems sleeping and shame. (582; 2003) According to Mrs. Mazella, Ms. Adamek told them that Mr. Mazella’s agitation and complaints were “definitely [] a result of the medicine, you’re having side effects.” (628) She suggested that Mrs. Mazella call the prescribing physician right then, during their meeting. (590; 628) According to Ms. Adamek’s testimony and notes, Mrs. Mazella called Co- Defendant Mashinic and expressed concerns about the medications and possible side effects especially “in increasing thought and emotional disregulation, agitation, disorientation, inability to concentrate, and physical symptoms of lightheadedness, ‘fogginess.’” (590; 2021) According to Mrs. Mazella, Co- Defendant Mashinic told her she could take Mr. Mazella off the KLONOPIN in the morning, but not to touch the RISPERDAL. (629) Between September 3 and 9, Mr. Mazella continued about the same, pacing a lot and complaining that his head “was on fire.” (630) On September 9, Mr. Mazella had a follow-up intake visit at the Brownell Center with a non-medical social work therapist, Celia Kamps. (630) According to Ms. Kamps’s intake notes and testimony, Mr. Mazella appeared “very uncomfortable,” and he complained that the medications were not working, that he felt “everything was overwhelming,” that it was “as if someone had “taken his brain out,” he had blurred vision, he could not concentrate and he had “suicidal thoughts come and go.” (611; 2011) Ms. Kamps also indicated that his wife was wondering who 27 might monitor his medications. (2011) Ms. Kamps was so concerned that she conferred with two medical doctors at Brownell about the possibility of scheduling him to see a physician as soon as possible. (Id.) Toward that end, she scheduled him for an accelerated third intake appointment for September 11. (Id.) Around noon on September 10, however, Ms. Kamps called Mr. Mazella to cancel his September 11 appointment at Brownell, explaining that the staff decided that because they would not have his medical records by that date, they would not be able to make a determination whether to accept him as a client to see a medical doctor. (616; 2022) On September 10, the Mazellas then called Carl Ellerman, a psychotherapist social worker whom a cousin of theirs had recommended. (634- 35) Dr. Ellerman refused to see Mr. Mazella unless he had an appointment for medical management set up, because he believed that Mr. Mazella needed a medication adjustment, that talk therapy alone would not be enough to help him. (544, 549, 571; 634-35; 1916) Mrs. Mazella then went to the office of their family physician Dr. Becker and refused to leave until he received the Auburn Hospital records by fax and agreed to manage Mr. Mazella’s medications, setting an appointment for Tuesday September 15. (635; 1946) Dr. Becker told her in the meantime to take Mr. Mazella off one KLONOPIN in the morning. (635) Dr. Becker then spoke with Dr. Ellerman, and once Dr. Becker agreed to meet Mr. Mazella on September 15 to 28 monitor his medications, Dr. Ellerman agreed to an appointment on September 11. (550; 1916; 1946) On Friday September 11, Mr. Mazella met with Dr. Ellerman, whom he told his wife he liked. (637) Dr. Ellerman told Mr. Mazella that he would call him the next day. (572-73) On Saturday September 12, shortly before midday, as Mr. Mazella and his wife were preparing to go out, he suggested that she take the first shower. (638- 39) When she finished, he was not around and when she looked, she found him in the garage, face down on the ground, dead. (640) He left a note, telling his family he loved them, but that the pain was too much. (2062) 29 V. ARGUMENT Defendant Beals sought permission of this Court to appeal from the Appellate Division opinion in part alleging that admission of the Office of Professional Medical Conduct Consent Order presented an issue that was both novel and of importance state-wide. (Packman Affid. in Support of Mot. for Leave to Appeal, Dec. 22, 2014, ¶ 34) Accordingly, we address this point first. A. POINT I: The Court Properly Admitted the OPMC Consent Order and a Photograph of Mr. Mazella Shortly After His Suicide 1. Admissibility of Exhibit 3: OPMC Consent Order At issue on appeal is the propriety of the admission of Plaintiff’s Exhibit 3, the Office of Professional Medical Conduct (OPMC) Consent Order and, by adoption, the Consent Agreement with exhibits, which punished Defendant Beals by censure and reprimand and three years of probation for practicing the profession of medicine with negligence on more than one occasion. (415a-430a) (The Board of Professional Medical Conduct and the OPMC (collectively, OPMC) serve, respectively, as the investigatory and adjudicatory arms of the Department of Health concerning allegations of professional misconduct by physicians. See NY Public Health Law § 230 et seq.; NY Education Law § 6530.) Among the facts the OPMC alleged in support of its negligence charge against Defendant Beals was prescribing medication to 13 patients without face-to- 30 face visits with them, and failing to monitor and evaluate those 13 patients for years at a time. (421a-426a) (It should be noted that all 13 patients suffered either from depression or attention deficit/hyperactivity disorder, for which he prescribed either anti-depressants or Adderall. (421a-425a)) Among the terms of probation the OPMC ordered was the restriction that Defendant Beals “shall practice medicine only when monitored by a licensed physician, board certified in an appropriate specialty, who has specific expertise in [Defendant Beals’s] type of practice.” (429a) By way of motion in limine, Defendant Beals attempted to preclude Plaintiff from questioning him about the OPMC Consent Order, arguing that the prejudicial effect would outweigh any probative value. (84a) In response, Plaintiff noted that at deposition Defendant Beals testified that his monitoring of Mr. Mazella was “absolutely” appropriate (460a), and argued that the trial court should permit questioning about and admission of the OPMC document not simply to attack the credibility of Defendant Beals, but also as substantive evidence. (460a-463a) The trial court decided that the Consent Order and accompanying documents “would be admissible in full with regard to the issues surrounding not only the Mazella case, but also the others, based on testimony of habit and credibility.” (30-31) A majority of the Appellate Division panel upheld the admission of the evidence on the grounds that, proper or not, admission of the evidence would not 31 have affected the trial result and therefore was harmless. (2540) Plaintiff and the courts were correct. In his opening brief to this Court, Defendant renews his argument that prejudice would outweigh any probative value, particularly as the Consent Order was, he believed, cumulative and unnecessary, and that pursuant to sub-provision 9 of section 230 of the New York Public Health law, the Consent Order was “not subject to disclosure.” (Packman Affid., Dec. 22, 2014, ¶ 21, and Def. Br., p. 40, both quoting NY Pub. Health Law § 230(9)) a. OPMC Consent Order Was Subject to Disclosure The sub-provision of Public Health Law section 230 upon which Defendant Beals relies – relating to Board proceedings and records, and compelling Board members to testify – is wholly inapposite to the admission of the Consent Order in this case. See Pub. Health Law § 230(9). Here, Plaintiff sought admission of a final order enforcing penalties to which Defendant Beals consented; Plaintiff did not seek to admit files relating to a mere investigation of possible misconduct, or to investigative-stage proceedings and records leading up to the charging document. Cf. Kirby v. Kenmore Mercy Hosp., 122 A.D.3d 1284, 1285 (4th Dep’t 2014) (“Pursuant to Public Health Law § 230(10)(a)(v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions, including Public Health Law § 230(9) . . . . Inasmuch as there is no 32 evidence in the record that the OPMC proceeded past the interview phase of [] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law.”) (citations and internal quotation marks omitted, bracketed language in original). Nor did Plaintiff seek to admit a final order in favor of Defendant Beals, absolving him of wrongdoing. Cf. Anonymous v. Bureau of Professional Medical Conduct/State Board for Professional Medical Conduct [hereinafter Anonymous v. OPMC], 2 N.Y.3d 663, 671 (2004) (interpreting § 230(9) and holding that “statutes governing physician disciplinary proceedings require confidentiality, even after the termination of the proceedings, where no charge against the doctor is sustained”) (emphasis added). Instead of sub-provision 230(9), Defendant Beals might have directed this Court to sub-provision 230(10)(g), which much more closely reflects our situation and directs that OPMC orders shall become public: (g) Results of hearing. The committee shall make (1) findings of fact, (2) conclusions concerning the charges sustained or dismissed, and (3) a determination regarding charges sustained or dismissed, and in the event any of the charges have been sustained, of the penalty to be imposed or appropriate action to be taken and the reasons for the determination. . . . The committee shall issue an order based on its determination. The committee’s findings, conclusions, determinations and order shall become public upon issuance. Pub. Health Law § 230(10)(g) (2015) (emphasis added). Indeed, in 2008, the legislature amended section 10(g), such that in all cases “the committee’s findings, conclusions, determinations and order shall become public upon issuance,” and no 33 longer just in those cases “in which annulment, suspension without stay or revocation of the licensee’s license is ordered.” See 2008 Sess. Law News of N.Y. Ch. 477 (S. 8298–A) (McKinney’s), amending paragraph (g) of subdivision 10 of section 230 of the public health law, as amended by chapter 627 of the laws of 1996; see also Anonymous v. OPMC, 2 N.Y.3d at 670 (citing pre-2008 § 230(10)(g)). Section 10(g) is now in line with the policy considerations that this Court set forth in Anonymous v. OPMC, prior to the 2008 amendment: No statute explicitly provides either for confidentiality or public release of the records of physician disciplinary proceedings where such proceedings result in some lesser discipline than “annulment, suspension without stay or revocation of the licensee’s license” or in dismissal of the charges. Strong reasons, however, support the Department’s policy of making public the records of proceedings in the first category after the administrative review process is complete. 2 N.Y.3d at 670. Moreover, the Consent Agreement at issue here explicitly states on its face that the “Consent Order, this agreement, and all attached Exhibits shall be public documents, with only patient identities, if any, redacted” (418a); and Defendant Beals testified that he consented to as much (135). Defendant Beals is incorrect that pursuant to sub-provision 230(9), the Consent Order was inadmissible. Above all else, the issue of admissibility turns on the application of standard evidentiary principles to the facts of this case. 34 b. Admissible as Presumptive Evidence of Negligence In the Consent Agreement at issue here, which became part of the Consent Order admitted at trial, Defendant Beals “agreed[d] not to contest the allegations in the third specification” of charges, that is the charge of “Negligence on More Than One Occasion.” (416a & 426a) He agreed not to contest the allegations as to 12 patients designated B through M. (416a) While he may have excluded patient A – Plaintiff’s decedent Joseph Mazella – his rejection of the allegations as to patient A did not serve to extinguish those allegations. The terms of the Consent Agreement, as adopted by the Consent Order, were not that Defendant Beals was not negligent in his treatment of patient A, but simply that in the pending disciplinary proceeding, Defendant Beals would not contest and seek to exonerate himself of the allegations as to patients B through M. See 416a & 418a. Defendant Beals never did invoke the right he retained to disprove, or even contest, the allegations as to patient A during the proceeding and, accordingly, those allegations remained in full force and effect as part of the pending charge. (There was, for example, no appendix, codicil, or rider to the charging document re-stating the third specification of charges without mention of patient A.) Thus, when the Board adopted the Consent Agreement, the charge’s factual allegations regarding all 13 of Defendant’s patients – including patient A – became the factual findings of guilt to support the punishment of censure and reprimand. 35 New York courts have held that the OPMC’s factual findings regarding a defendant’s treatment of a patient are admissible in a civil trial as presumptive evidence of those facts, if otherwise properly rendered admissible as evidence. See Colao v. St. Vincent’s Medical Center, 65 A.D.3d 660, 661 (2d Dep’t 2009) (“New York State Department of Health ‘Statement of Deficiencies’ submitted by the plaintiff is admissible evidence under Public Health Law § 10(2)”); Maldonado v. Cotter, 256 A.D.2d 1073, 1075 (4th Dep’t 1998) (“Pursuant to Public Health Law § 10(2), the written reports of State health inspectors on questions of fact related to the enforcement of the Public Health Law ‘shall be presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places’”) (citation omitted); Cipriano v. Ho, 29 Misc.3d 952, 958 (Kings County 2010) (concluding that pursuant to Public Health Law § 10(2), OPMC findings of fact as to defendant’s treatment of plaintiff would be admissible). The Public Health law upon which these cases rely, section 10 sub-provision 2, directs that “written reports of state and local health officers . . . in connection with complaints . . . and orders, related to the enforcement of . . . any local health regulation shall be presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places.” N.Y. Pub. Health Law § 10(2) (emphasis added). 36 Because the Consent Order included Defendant Beals’s negligent treatment of patient A – the same treatment at issue in the instant civil trial – and punished him in part based on that treatment, to which punishment he testified he consented “in full satisfaction of these charges” (134; see also 416a), the Consent Order was admissible at trial as presumptive evidence of Defendant Beals’s negligent treatment of patient A, Plaintiff’s decedent. c. Admissible as Similar Act Evidence to Establish Negligence This Court may also conclude that the Consent Order – and its incorporated Consent Agreement with exhibits setting for the factual allegations, charges and terms of probation – was admissible as to all 13 patients as an exception to the prohibition against using similar act evidence to establish negligence. As a general rule, applicable in both civil and criminal cases, 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 Brandon, 55 N.Y.2d 206, 210-11 (1982) (citation omitted). However, courts have long recognized certain exceptions to this rule where the evidence has some relevancy to the issues presented other than mere similarity. Id. Trial courts may admit evidence of other similar acts if it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity. Brandon, 55 N.Y.2d at 211 (citing People v. 37 Molineux, 168 N.Y. 264, 293 (1901)). This appeal involves the second and fourth categories. Plaintiff was entitled to use the Consent Order to establish that it was Defendant Beals’s intent to call in prescriptions without patient visits or monitoring, as opposed to Mr. Mazella’s idea to get his prescription by phone in order to shirk face-to-face psychiatric treatment and care. Plaintiff was also entitled to use it to establish that the mistreatment of Mr. Mazella was part and parcel of Defendant’s overall scheme or plan to avoid visiting with and monitoring his patients, and was materially indistinguishable from his treatment of at least 12 other patients, a scheme whose negligence Defendant Beals agreed not to contest. In Matter of Brandon, this Court explained the distinct purposes of the intent exception and the “common scheme or plan” exception, and the different level of proof required to establish each. 55 N.Y.2d at 210-14. Similar act evidence of intent, the Court explained, is admissible “to negate the existence of an innocent state of mind”; the focus is not the actual doing of the act, which is either conceded or established by other evidence, but the state of mind. Id. at 211. “The intent exception is predicated primarily on a theory of increased probability arising from repetitive actions,” because the nature of the act itself is devoid of particular intent. Id. at 211. In contrast, similar act evidence of a common scheme or plan, the Court explained, is admissible “to prove that the person did the act in issue.” Id. at 212. “[W]here the very act is the object of proof, and is desired to be inferred from a 38 plan or system, the combination of common features [] will suggest a common plan.” Id. at 213. The Brandon Court directed that the crucial consideration for admission under the intent exception is “the degree of similarity between the various acts and not their connection with one another.” Id. at 212 (citations omitted). Accordingly, the party offering the evidence need only establish “a sufficient degree of similarity” among the acts, but no strict time limitation for example, or concurrence of common features is required. Id. at 214. By contrast, because the very act itself is the object of proof to be inferred under the common plan or scheme exception, admission on this ground requires “a much higher [] grade of similarity.” Id. at 213. The party offering the evidence must show some connection between the acts “in the mind of the actor, uniting them for the accomplishment of a common purpose”; there must be “a clear concurrence of common features – i.e., time, place and character – that the various acts are naturally to be explained as caused by a general plan.” Id. at 212 (citations and internal quotations omitted). In this case, the Consent Order was admissible under the intent exception not to establish the fact 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. In opening statements, Plaintiff’s counsel referred to his 39 expectation that Defendant Beals would attempt to shift the blame onto Plaintiff’s decedent (63); and indeed, during his opening, defense counsel suggested Mr. Mazella was to blame, referring to his reluctance to confront and acknowledge his illness and to follow doctors’ recommendations (71, 73). Plaintiff had the right to try to pre-empt and counter these anticipated allegations during her case in chief. As it turned out, during the trial itself, defense counsel did indeed attempt to elicit testimony to establish that Mr. Mazella thwarted his own treatment, by allegedly failing to take his Paxil as directed the month before his final relapse (552, 554-56; 676-82), by allegedly refusing to follow Defendant Beals’s direction to commit himself to an in-patient facility (1017, 1044), and by failing to continue to take the doubled Paxil and Zyprexa he prescribed on August 9 (1043-44). The defense also suggested to the jury that Mr. Mazella did not commit himself to in- patient treatment at a nearby hospital with available beds because he feared public humiliation. (556; 1013-15, 1017-18, 1025) Admission of the Consent Order served to refute Defendant’s theories by establishing that Mr. Mazella was not the one who sought to shirk visits, and avoid monitoring by Defendant Beals for ten years, because of some disobedience or fear of humiliation; but rather, it was the fault and intent of Defendant Beals to avoid him and mistreat him, as evidenced by Defendant Beals’s similar repetitive behavior with at least 12 other patients. 40 The Consent Order was also admissible under the common scheme or plan exception to establish negligence by admission. This Court may draw the inference from Defendant Beals’s consent without a hearing to the Agreement and Order and terms of punishment that he recognized the merit of the negligence charge as to patients B through M. See, e.g., D’Ambrosio v. Dep’t of Health of State of New York, 4 N.Y.3d 133, 138 (2005) (affirming OPMC Administrative Review Board conclusion that defendant doctor’s consent to surrender his license without a hearing following charges of negligence raised the inference that the charges were meritorious). Upon a showing of commonality between Defendant Beals’s treatment of Mr. Mazella and his treatment of the other 12, patients B through M, it becomes virtually irrefutable that his treatment of Mr. Mazella was no more than an “individual manifestation” of his overall scheme to negligently avoid face-to-face visits and monitoring of patients. See Brandon, 55 N.Y.2d at 212 (citations omitted). 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. Mazella.1 1 It might also be admissible to explain why Defendant Beals did not refer Mr. Mazella to a covering psychiatrist to adjust and monitor his medications on August 9, 2009, rather than negligently doubling his medications sight-unseen by telephone when he was hundreds of miles away on vacation. Had he referred Mr. Mazella, in line with accepted medical practice, he would have run the risk that his scheme of prescribing medications without monitoring would be discovered. 41 (Indeed, after the Consent Order was in evidence and after he had admitted a deviation upon examination by defense counsel, Defendant Beals admitted to Plaintiff’s counsel on re-direct that it was the OPMC charging him with negligence that changed his own opinion about his monitoring of Mr. Mazella from 2000 to 2009, such that he realized it had been inappropriate and a deviation from the standard of care. (167-69) Thus, while Defendant Beals did not agree not to contest the negligence allegation as to patient A, he apparently realized at the time that the charge was as meritorious as to Mr. Mazella as it was to the other 12 patients.) Under the intent theory, Plaintiff only needed to establish “similarity” between Defendant Beals’s treatment of Mr. Mazella and the other 12 patients. Brandon, 55 N.Y.2d at 212, 214. The underlying facts of the treatment of the 13 patients, however, demonstrate more than similarity and easily satisfy the more stringent standard of proof courts apply to the common scheme or plan theory. See id. at 212-13. The “concurrence of common features” in his treatment of the 13 patients, A through M, include Defendant Beals’s failure to adequately see and monitor all of them for many years (anywhere from 3 to as long as 16 years, most for more than 7 years), during the same time frame (1995 to 2011), and in the same place, in Liverpool, New York. (421a-425a) In addition, there was a concurrence of 42 common conditions among the 13 patients whom he failed to monitor (patients A, B, C, H and J suffered from depression; patients C, D, E, F,G, H, I, J, K, L and M suffered from attention deficit disorder or attention deficit hyperactivity disorder); and there was a concurrence of prescription medications he failed to monitor (for patients A, B, D, H and I he prescribed anti-depressants; for patients C, D, E, F, G, I, J, K, L and M he prescribed Adderall). Id. Defendant Beals cites several cases in his brief that stand for the principle that propensity evidence is inadmissible, and that OPMC findings of unrelated acts of malpractice are inadmissible, and then argues that patients B through M were separate and independent cases without bearing on Mr. Mazella. (Def. Br. pp. 42- 43, 46-47) These 13 patients and the treatment they received were anything but separate and dissimilar from one another. Perhaps there is no stronger proof of their commonality than that the OPMC brought a single charge against Defendant Beals comprising 13 patients, as opposed to 13 separate charges comprising 1 patient each, or even 13 separate misconduct proceedings. The Consent Order satisfies the requirements for admission under both the intent and “common scheme or plan” exceptions. d. Admissible to Impeach the Credibility of Defendant Beals Setting aside the question of similar act evidence, the Consent Order was admissible to impeach Defendant Beals on the independent ground that it was a 43 disciplinary action against him, with terms of punishment bearing on his character and truthfulness. See, e.g., Cipriano, 29 Misc.3d 952. It was also admissible to impeach his credibility as an admission and prior inconsistent statement. In People v. Schwartzman, this Court discussed at length the general rule that “a cross-examiner cannot contradict a witness’ answers concerning collateral matters by producing extrinsic evidence for the sole purpose of impeaching credibility.” People v. Schwartzman, 24 N.Y.2d 241, 245 (N.Y. 1969) (citations omitted). “However,” the Court explained, “an exception to this rule exists where the evidence sought to be introduced is relevant to some issue in the case other than credibility or if independently admissible to impeach the witness.” Id. (citations omitted). “Thus, when a witness testifies concerning a fact material to the case, he may be contradicted either by cross-examination or by introduction of other evidence.” Id. at 246 (citations omitted). Prior to trial, defense counsel advised Plaintiff’s counsel that Defendant Beals would be admitting that he departed from accepted standards of practice by failing to see and monitor Mr. Mazella for ten years. (See 55-56) In reliance on this information, Plaintiff’s counsel during opening remarks mentioned to the jury that he believed Defendant Beals would make some admission. (55-56) Defense counsel followed suit, mentioning during his opening that Defendant’s failure to see Mr. Mazella for ten years was “regrettable” and “not consistent or acceptable 44 in terms of the standard of care.” (68) At trial, however, Plaintiff’s questions to Defendant Beals on this issue elicited only denial. Plaintiff then offered the Consent Agreement into evidence. (130-31) In arguing to this Court that admission of the document constituted reversible error, Defendant relies primarily on Justice Smith’s dissent. (Def. Br. pp. 41 & 43, quoting Smith, J. dissenting at 2543-44) Justice Smith concluded that the trial court erred in overruling Defendant’s objection to admission of the Consent Agreement after “defendant admitted that he had failed to appropriately monitor decedent while he was on medication,” but before Defendant “indicated that it was not” malpractice. (2543) Respectfully, Justice Smith was incorrect as to the timing of the objection and the ruling on admission (as we discuss immediately below), and the timing was significant. Compare 130-31 and 2543. i. The Examination of Defendant Beals When Plaintiff’s counsel examined Defendant Beals, he began by asking about his receipt of money from pharmaceutical companies, and about FDA regulations regarding prescribing medications. (126-30) Then, expecting the admission to which defense counsel alluded during opening remarks, Plaintiff’s counsel began the following line of questioning – to which Justice Smith referred in dissent – to elicit the admission that treatment of decedent for ten years without visits or monitoring was a departure from accepted practice: 45 Q [Pl Counsel] And I understand, Doctor, that from counsel’s statements in jury selection and opening statement, you are willing to admit some items of medical malpractice in the care of Joseph Mazella; is that correct? A [Def Beals] No, sir. What I conceded was that I would see patients on a more regular basis than I had previously. (130, emphasis added) Because Defendant Beals’s answer was not responsive as to Mr. Mazella specifically, nor was it an admission as to anyone, Plaintiff’s counsel broke down the question into two parts for Defendant Beals, to focus him first on Mr. Mazella, and secondly on the departure: Q [Pl Counsel] Well, Doctor, you understand that one of the allegations Mrs. Mazella and I have levied against you is that you failed to appropriately monitor Joe Mazella from 2000 to 2009 while you had him on PAXIL. My question to you, did you do that, first? A [Def Beals] Yes, sir, I did. Q Is that malpractice? A No, sir, I do not believe it is. (130-31) Respectfully, in the dissent, Justice Smith critically misstates the sequence of questions and the objection. Justice Smith writes: “After Supreme Court overruled the objection of defendant’s attorney, defendant indicated that it was not [malpractice]. The court then permitted plaintiff’s attorney to introduce the 46 consent agreement in evidence and to use it to impeach defendant. That was error.” (2543, emphasis added) That was not the sequence. The Supreme Court did not overrule an objection before Defendant Beals denied malpractice; the objection came only afterward: Q [Pl counsel] Is that malpractice? A [Def Beals] No, sir, I do not believe it is. [PLAINTIFF’S COUNSEL]: Your Honor, I have Exhibit 3 here. This is a certified copy of a document from the Office of Professional Medical Conduct with reference to William Beals, M.D. . . . . I have provided counsel with a copy, and I move admission of Exhibit 3 at this time. THE COURT: Any objection? [DEFENSE COUNSEL]: Yes, Your Honor. THE COURT: Other than what we already talked about? [DEFENSE COUNSEL]: Yes, yes. THE COURT: Mr. Lantier [co-defense counsel]? [CO-DEFENSE COUNSEL]: I don’t maintain a position on that. THE COURT: Overruled. Exhibit 3 is admitted. (131) It was Defendant Beals’s unyielding “No” response – particularly in light of defense counsel’s assurance to Plaintiff that during trial he would be admitting the 47 departure despite his denial at deposition – that set everything into motion and provided grounds for admission of the document to challenge his credibility. ii. “Malpractice” and “Negligence” By way of lengthy aside and clarification, in a portion of the dissent which Defendant quotes, Justice Smith noted that Plaintiff’s counsel used the term “malpractice” instead of “negligence” when trying to elicit the promised admission from Defendant Beals that his failure to monitor Mr. Mazella for ten years was a departure from accepted medical standards. (Def. Br., pp. 43-44, quoting Smith, J., dissenting at 2543-44, referring to trial testimony at 130-31) Justice Smith explained that because it is well settled in the caselaw that “malpractice” connotes negligence and causation together, Defendant Beals’s denial of “malpractice” did not open him up for impeachment by use of the OPMC document, which concerned only negligence. Id. However, to Justice Smith’s point, up until that moment in the trial, everybody had been using the term “malpractice” to mean “negligence” and making a distinction between “malpractice” and causation. (3; 55-57, 59, 62-63) Indeed, thereafter, Justice Cherundolo continued this practice and used the term “malpractice” instead of “negligence” in his closing charge to the jury, in adherence to the relevant pattern jury instruction. (1312; see NY PJI 2:150) 48 The first person at this trial to use “malpractice” in lieu of “negligence,” and to distinguish it from causation, was Justice DeJoseph, who was covering for Justice Cherundolo on the day of jury selection. In addressing the jury before trial, Justice DeJoseph stated: Dr. Beals concedes that the manner in which he renewed a prescription for Paxil was not consistent with prevailing medical standards, but he contends that the medication, itself, was appropriate, including its dosage, and it did not cause Mr. Mazella’s death. Dr. Beals contests all other claims of malpractice and further contends that his actions did not cause Mr. Mazella’s death. (3, emphasis added) Thereafter, throughout opening remarks, Plaintiff’s counsel used the term “malpractice” to mean negligence. (55-57, 59, 62-63) For example, Plaintiff’s counsel told the jury: And from the year 2000 to 2009, you’ll hear that Dr. Beals had absolutely no contact . . . . You heard in the jury selection, counsel for Dr. Beals was suggesting there may be some admissions by Dr. Beals of certain conduct that constitutes malpractice. That may be one of them. I don’t mean to speak for them but you’ll have to listen to them. That’s malpractice. (55-56) Plaintiff’s counsel also went out of his way to differentiate between Defendant Beals’s anticipated admission and causation: Our psychiatrist is going to tell you that it’s malpractice to let [Mr. Mazella] out of the hospital with that discharge plan . . . . That’s malpractice. 49 You’re going to hear from our psychiatrist about how the conduct of Dr. Beals that I’ve outlined for you and the conduct of Dr. Mashinic that I’ve outlined for you contributed to Joe’s death. And the Judge will explain to you how the contributing and the causation works. The defendants have a defense also, and it’s very simple. Their first defense is, we did nothing wrong, with the exception of this admission by Dr. Beals, which is going to, I believe, happen today. And their second defense is, even if we did do something wrong, well, that didn’t cause Joe’s death. And I believe the third defense is going to be, they may try to blame Janice [Mrs. Mazella] and they may try to blame Joe [the decedent]. (62-63, emphasis added) In his closing charge, Justice Cherundolo told the jury: Malpractice is professional negligence. And medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or a departure from the accepted practice of medicine. (1312, emphasis added) While we do not deny the caselaw definition Justice Smith applied in the dissent, we note that in the context of this trial, the justices and attorneys were calling negligence “malpractice,” and they were doing so in strict compliance with the pattern jury instruction 2:150, which states: Malpractice is professional negligence and medical malpractice is the negligence of a doctor. Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a 50 reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice. NY PJI 2:150. In sum, at no time did Defendant Beals’s counsel raise an objection to Plaintiff’s counsel’s and both justices’ conflating the terms, or to Justice Cherundolo’s reliance on pattern jury instruction 2:150. Furthermore, given how everyone had used the term “malpractice” up to the time that Plaintiff’s counsel asked Defendant Beals for a concession, and knowing Plaintiff’s counsel was going to ask him to concede negligence and not causation, he would have understood Plaintiff’s counsel to mean “negligence” when asking if it was “malpractice” not to monitor the decedent from 2000 to 2009. iii. Probative of Truthfulness Upon Defendant Beals’s denial that he failed to appropriately monitor Mr. Mazella for ten years (130-31), admission of the Consent Order was appropriate. It was admissible extrinsic evidence to impeach Defendant Beals because its penalty terms were probative of truthfulness. See, e.g., Cipriano, 29 Misc.3d at 958-61. In 2010, in Cipriano v. Ho, the trial judge raised the issue of whether a medical malpractice plaintiff may seek to impeach a defendant doctor with questioning regarding OPMC disciplinary action taken against the doctor, noting no appellate authority directly on point. 29 Misc.3d at 958. In analyzing the issue, the court sought to distinguish between the simple fact of disciplinary action and 51 the action’s underlying findings: Although not entirely clear from the caselaw, the fact alone of disciplinary action against a physician does not appear 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. It is not necessary that the findings and determinations be probative of malpractice as alleged in the action before the court. . . . As to probative weight on credibility, sustained findings that justify the penalty imposed may be at least as significant as the finding of professional misconduct. 29 Misc.3d at 959-60 (emphasis added). The Cipriano court ultimately determined that, for purposes of impeaching defendant’s credibility at trial, it could not give sufficient probative value to the OPMC findings and determinations as to the defendant physician’s negligence, because “negligent acts or omissions do not ‘tend[] to show moral turpitude.’” 29 Misc.3d at 960 (citation omitted). The court reasoned, however, that an OPMC penalty determination might bear on credibility directly, or on a deficiency in moral character, and concluded that the OPMC penalty in the case before it was indeed probative of defendant’s truthfulness in testifying at the medical malpractice trial. 29 Misc.3d at 960-61. The Cipriano court raised an interesting and perhaps novel issue for this Court and, we believe, that court’s analysis and reasoning is applicable to the case at bar. In Cipriano, the trial court concluded that the reasons for the defendant doctor’s two-year suspension from the practice of medicine – including the 52 defendant’s inability to admit mistakes and his attempt to shift blame to other physicians – implicated his credibility and/or character such that the OPMC document was admissible. 29 Misc.3d at 960. Here, too, the penalty itself is probative of Defendant Beals’s credibility and deficiency in moral character – the grounds on which the trial court admitted the Consent Agreement (30-31) – and following the reasoning of Cipriano, it too was admissible. Among the terms of the two-year probation that it imposed against Defendant Beals, the OPMC directed him to “conform to moral and professional standards of conduct” (428a ¶ 1), to “provide written periodic verification” of his compliance (428a ¶ 4), to “maintain complete and legible medical records that accurately reflect the evaluation and treatment of patients” (429a ¶ 9), and to “successfully complete a continuing education program in the area of controlled substance prescribing, treatment and follow up of patients with psychiatric diagnoses, and psychopharmacology” (429a ¶ 11). But the OPMC apparently was not satisfied with terms that simply relied on Defendant Beals to be truthful and accurate in his self-reporting. The OPMC imposed additional penalty terms upon him, which implicate Defendant Beals’s deficient moral character and his lack of truthfulness, including directing that he only practice when monitored by a board-certified licensed physician (429a ¶ 10), that he make all records available to the monitor (429a ¶ 10a), that the monitor 53 visit on a random unannounced basis at least monthly (id.), and that the monitor would examine no fewer than 20 records, including patient records, prescribing information and office records (id.). As in Cipriano, here the findings implicit in the OPMC’s penalty terms rendered the Consent Order probative of Defendant Beals’s truthfulness in testifying at trial. iv. A Party Admission and Inconsistent Statement The Consent Order was also admissible to impeach Defendant Beals as an admission. As Plaintiff’s counsel argued in opposition to Defendant’s motion in limine, an admission is any declaration or conduct of a party inconsistent with the party’s position, and here, the Consent Order was inconsistent with Defendant Beal’s position at deposition and at trial. (459a, citing Prince, Richardson on Evidence, 11th Edition, Section 8-201) We would also note that the Consent Agreement itself contained language which suggested that, if adopted, the terms of the Agreement would constitute an “admission” of misconduct by Defendant Beals: I ask the Board to adopt this Consent Agreement. I understand that if the Board does not adopt this Consent Agreement, none of its terms shall bind me or constitute an admission of any of the acts of alleged misconduct; this Consent Agreement shall not be used against me in any way and shall be kept in strict confidence; and the Board’s denial shall be without prejudice to the pending disciplinary proceeding and the Board’s final determination pursuant to N.Y. Pub. Health Law. 54 . . . . . . . . In consideration of the value to me of the Board’s adoption of this Consent Agreement, allowing me to resolve this matter without the various risks and burdens of a hearing on the merits, . . . I agree to be bound by the Consent Order, and I ask that the Board adopt this Consent Agreement. (418a-419a, emphasis added) Once the Board adopted the Consent Agreement at Defendant Beals’s request, the terms bound him and would appear to have constituted an admission of misconduct, in the event, for example, that he failed to comply with the “Consent Order and all its terms,” and the OPMC had to “initiate a violation of probation proceeding” against him. (429a-430a) Second, as Plaintiff’s counsel also argued in opposition to the motion in limine, the Consent Order constituted a prior inconsistent statement subscribed by the defendant and admissible under CPLR Rule 4514. (461a) In light of our various arguments above, Defendant Beals’s signing the Consent Order and agreeing to punishment, for the same conduct alleged at trial, was tantamount to a statement inconsistent with his denial at trial of wrongdoing in monitoring Mr. Mazella. e. OPMC Consent Order Was Not Cumulative Evidence In his brief to this Court, Defendant argues that admission of the Consent Order was “unnecessary” and “cumulative” due to pre-trial and opening statement concessions. (Def. Br., pp. 47-48) However, any concessions of negligence, 55 whether before trial or during counsel’s opening statement, had no evidentiary value and were rendered particularly meaningless where, as here, during the trial itself the defendant denied responsibility when initially questioned. (130-31) Accordingly, questioning at trial was both necessary and not cumulative. “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,” Defendant writes, “removes this specific issue from requiring jury resolution.” (Def. Br., p. 48, emphasis added) “Once conceded, the issue became moot and did not require any litigation. As this issue was not in dispute . . . [the] 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.” (Id., emphasis added) Defendants’ argument rings hollow. First, the parties did not resolve Defendant Beals’s concession: there was no signed stipulation admitted into evidence conceding negligence; there was no section in the verdict sheet submitted to the jury advising it that Defendant Beals conceded negligence in failing to see Mr. Mazella for ten years such that it need only consider the question of proximate cause. Second, the issue of negligence did not become moot; rather, it remained in dispute and required litigation and jury resolution. When Plaintiff’s counsel questioned Defendant Beals, both before and after admission of the OPMC Order, he did not concede negligence. (See 130-31 56 & 135-36) It was not until defense counsel subsequently questioned him about the Order, and effectively made him concede, that he finally did so. (152) f. Questioning about the Consent Order Was Not Prejudicial In his brief to this Court, Defendant Beals also contends that Plaintiff’s counsel “repeatedly raised and discussed” the Consent Order “compounding the prejudicial and substantial impact” of its “improper introduction.” (Def. Br., pp. 50-51) He argues first that it was prejudicial when Plaintiff’s counsel allegedly made an “inappropriate comment” in front of the jury about a second OPMC Consent Order, which the court had precluded. (Def. Br., p. 50, citing 132) Defendant, however, completely misreads the transcript at Record page 132. When the court asked Plaintiff’s counsel if the OPMC document was “January 25th, 2012,” and counsel responded that there were “two dates, but that’s one of them” (132), he was not referring to the date of a second OPMC Order. He was, instead, advising the court that the OPMC Consent Order and Agreement at issue had two dates associated with it, a January date when Defendant Beals signed the Agreement, and a February date when the OPMC signed the Agreement and when it ultimately issued the Order. (Compare 420a & 415a) The January 25th date about which the court asked was one of those two. Defendant argues, second, that it was prejudicial for Plaintiff’s counsel to elicit testimony that he had an attorney for the OPMC proceedings and a right to a 57 trial, and “compelled [him] to testify about the nature of each punishment that OMPC [sic] inflicted upon him for his agreement with their allegations.” (Def. Br., p. 51, emphasis added) We disagree. Questioning as to legal representation and the nature of the punishment was proper to establish for the jury that Defendant Beals’s consent to the Agreement was entered knowingly and voluntarily. Defendant argues, third, that it was prejudicial that after “establishing that Dr. Beals had not seen the decedent from 1999 through 2009, [Plaintiff’s counsel] 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)” (Id. Def. Br., p. 52, emphasis added) We again disagree. If the negligence issue was “irrelevant” as defense counsel contends, then any alleged repeated concession was harmless. Furthermore, when Plaintiff’s counsel asked Defendant Beals whether the OPMC charged him for failing to monitor Mr. Mazella (1041), he did so on cross-examination during the defense case not to re-hash discussion about the OPMC Order, but rather to impeach Defendant Beals’s testimony on direct examination that he had a “good therapeutic alliance” with Mr. Mazella in August 2009 (1017 & 1037). In challenging his 58 credibility as to the “alliance” testimony, Plaintiff’s counsel had to review with him the total lack of contact he had with Mr. Mazella, year by year from 2009 back to 2002, and then asked if that was not exactly why the OPMC charged him. (1037-41) Finally, the OPMC did not “inflict” punishment on Defendant Beals, as defense counsel overstates. (Def. Br., p. 51) Defendant Beals consented to punishment. He was no victim. In fact, the OPMC also charged Defendant Beals with professional misconduct for practicing medicine while impaired, pursuant to N.Y. Education Law section 6530(a). (431a-442a) Defendant Beals entered into a second Consent Agreement and Order on September 14, 2012, admitting guilt to “being dependent on or a habitual user of” hydrocodone, Zolpidem, nubain and/or alcohol from January 2010 through February 2012, and agreeing to a five-year term of probation. (431a, 436a) Plaintiff’s counsel sought admission of this second OPMC document as impeachment evidence, as it was reflective of moral turpitude and thus relevant to credibility. (464a-465a) The trial court granted defense counsel’s motion in limine to preclude it, unless “something far afield or way out of left field comes up that makes it admissible.” (31) We believe that the jury was entitled to this evidence of moral turpitude – of Defendant Beals putting his own personal interests ahead of society’s interest – as 59 it went to his credibility, particularly with regard to his testimony concerning what occurred at that final August 17 visit and his abrupt and callous abandonment of Mr. Mazella. If this Court were to vacate the judgment and remand this action for a new trial, Plaintiff’s counsel would again seek admission of this second OPMC document, as the prior ruling would be void. To the extent that this Court may provide guidance to the trial court, we would ask that it do so. 2. Admissibility of Exhibit 8: Photograph of Mr. Mazella Defendant Beals argues on appeal that while photographs of an individual shortly after an event may be probative to assist the jury in assessing pain and suffering, the photograph here of Mr. Mazella shortly after his suicide had no such value, but rather was offered to arouse jury emotions. (Def. Br., pp. 54-55) First, we note that if jury emotions were at all aroused, it would have been as a result of defense counsel’s very lurid description of the photograph during his opening statement (74), and not from the photograph’s depiction of Mr. Mazella from a distance and, respectfully, face down (1863). Second, Plaintiff offered the photograph not to arouse emotions, but for the purpose of supporting her proof as to proximate cause. The photograph of Mr. Mazella’s body provided an idea of the violent manner in which Mr. Mazella killed himself, which according to the testimony of Plaintiff’s medical expert Dr. Breggin 60 suggested the cause of suicide. Dr. Breggin gave his medical opinion based on clinical and scientific studies that the “very uncommon” and “very violent and bloody” nature of Mr. Mazella’s suicide was associated with anti-depressant usage. (281-82) As Defendants Beals and Mashinic prescribed the anti-depressant medications, the photo and expert testimony helped to make the causal connection between their negligent administration of those drugs and his death. The trial court concluded that of all the available photographs, the one Plaintiff proposed to offer was “the least offensive,” and was admissible for establishing how Mr. Mazella killed himself, as well as for pain and suffering and other related issues. (40) The trial court did not abuse its discretion as the probative value of the photo with regard to the mode (and thus, cause) of suicide outweighed any potential prejudice to Defendant Beals. Moreover, even if this Court were to conclude that admission of the photo was error, the error was harmless given the overwhelming evidence in the record to support the jury’s finding that Defendant Beals’s negligence was a proximate cause of the suicide, as we discuss below in Points 2 and 3. 61 B. POINT 2: The Trial Court Properly Denied the Post-Trial Motion to Set Aside the Verdict as Allegedly Legally Insufficient, Relying on Plaintiff’s Expert’s Competent Medical Opinion Testimony Standard of Review It is well recognized under New York law that to be entitled to judgment as a matter of law in a medical malpractice action, the defendant has the burden of showing that plaintiff failed to make out a prima facie case. The plaintiff is entitled to the benefit of the most favorable inferences which can reasonably be drawn from the evidence. See Nicholas v. Reason, 84 A.D.2d 915, 915 (4th Dep’t 1981) (citations omitted); see also Lacy v. Guthrie Clinic Ltd., 184 A.D.2d 1057, 1058 (4th Dep’t 1992) (finding evidence made out prima facie case, reversing dismissal of complaint). Here, a majority of the Appellate Division panel rejected Defendant’s contention that Plaintiff “failed to establish a prima facie case of medical malpractice,” concluding that there was a “‘valid line of reasoning supporting the jury’s verdict that defendant deviated from the applicable standard of care in [his treatment] of plaintiff’s [decedent] . . . , and that such deviation was a proximate cause of [the] injuries’ of plaintiff’s decedent.” (2539, Mem. and Order, p. 1, quoting Winiarski v. Harris [appeal No. 2], 78 A.D.3d 1556, 1557 (4th Dep’t 2010) (bracketed words in original); also citing Sacchetti v. Giordano, 101 A.D.3d 1619, 1619-20 (4th Dep’t 2012).) The dissenting justice did not take a position as 62 to the legal sufficiency of the verdict, but rather indicated that she would have reversed the judgment and granted the motion to set aside the verdict as against the weight of the evidence. (2540, Mem. and Order, Smith, J. dissenting, p. 2) In reviewing the Appellate Division’s conclusion that the evidence was sufficient to maintain a prima facie case as a matter of law, this Court applies the criteria the trial judge would have applied. Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978); CPLR § 5501(b). This Court may reverse the Appellate Division’s affirmance of the trial court’s denial of the motion to set aside the verdict as legally insufficient only if there was “simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.” Id. Discussion On appeal, Defendant Beals does not dispute that Plaintiff established a prima facie case that he failed to exercise such reasonable care and diligence in his treatment of Mr. Mazella as would be expected of the average member of the medical profession in the locality at the time of the treatment. See Nicholas, 84 A.D.2d at 915. He challenges only that Plaintiff failed to prove a prima facie case that the negligence was a proximate cause of the death. (Def. Br., pp. 24-33) In arguing that there were no permissible inferences to support a proximate cause finding, Defendant Beals first challenges the qualifications of Plaintiff’s 63 expert to give an opinion. (Def. Br., pp. 26-27) Then he challenges the basis of the opinion itself, arguing that competent evidence did not support the expert’s testimony and that Plaintiff’s expert ignored evidence of allegedly intervening and superseding acts that broke the causal nexus between his negligence and the injuries suffered. (Def. Br., pp. 24, 28-33) 1. Plaintiff’s Expert Was Qualified to State an Opinion as to Proximate Cause Defendant Beals argues on appeal that the trial court should not have qualified Plaintiff’s expert Dr. Peter Breggin for two reasons: first, because Dr. Breggin “offered opinions . . . regarding the treatment decisions by Dr. Beals despite the fact that they are beyond his professional expertise” (Def. Br., p. 26); and second, because “Dr. Breggin’s bias toward physicians that use psychiatric medications . . . disqualifies him from providing competent and reliable testimony” (Def. Br.. p. 27). With regard to “treatment decisions . . . beyond his professional expertise,” at trial, defense counsel did not raise any objection to the court’s qualifying Dr. Breggin as an expert and so he has waived this issue for appeal. Procedure aside, substantively Dr. Breggin was eminently qualified to give opinion testimony as to Defendant Beals’s treatment of Mr. Mazella’s psychiatric condition. Dr. Breggin has been a clinical psychiatrist practicing in New York since 1968, with experience lecturing at medical schools and giving presentations to the United States 64 Congress, the National Institute of Mental Health, and the Federal Aviation Administration, among other venues and, as of the time of trial, he spent 12 to 20 hours a week seeing patients. (241-247, 310) With regard to the allegation of bias, defense counsel for Defendant Beals examined Dr. Breggin extensively, and Dr. Breggin testified among other things that he was not applying to this case his own personal standard as to the over- prescription of medication. (300-03, 350-54) Ultimately, it was a question for the jury to decide if his testimony was credible. With regard to the specific facts of this case, Dr. Breggin was qualified to give an opinion, testifying that he examined the records of Defendant Beals and Co-Defendant Mashinic; the records of Dr. Becker; the records of St. Joseph’s Hospital (CPEP) and Auburn Memorial Hospital; the records of the Brownell Center and Carl Ellerman, Ph.D.; as well as “a variety of other things.” (251) He also testified that he was familiar with the standard of care for the condition that Mr. Mazella suffered, as well as the function, dosages, uses and warnings related to the medications Defendant Beals prescribed to treat that condition. (247-87, 303- 09, 318-22) Dr. Breggin gave his opinion that there was a divergence from accepted medical standards in Defendant Beals’s treatment of Mr. Mazella during the entire course of their relationship, including prescribing and adjusting medications for ten 65 years up until the final August 2009 visit without periodically meeting with the patient (252-53, 255, 275, 284, 348-49, 355, 360, 477-80), and discharging the patient in the manner that he did on August 17, 2009 (257-58, 284-85). He further testified that it was his opinion based on a reasonable degree of medical certainty that Defendant Beals’s related acts of negligence over many years was a substantial factor in causing the suicide (256-57, 260-61, 283-85, 287, 357-59, 366, 371, 478-84, 507), and that Defendant Beals bore responsibility as well for both the negligent acts of follow-up doctors (387-88) and Mr. Mazella’s inability to subsequently “establish a secure relationship with a physician around his medication and around his psychiatric problems.” (261) Dr. Breggin concluded that Defendant Beals “cast [Mr. Mazella] at sea.” (261) Dr. Breggin’s testimony was specific and sufficient to establish the elements of malpractice against Defendant Beals. Consequently, there were issues of fact with respect to Defendant Beals that required a determination by the jury. See, e.g., Reason, 84 A.D.2d at 915-16 (citations omitted). At the completion of Plaintiff’s evidence, the trial court concluded that Plaintiff presented “enough proof on the record to show a question of fact with regard to the issue of causation.” (864) Again at the close of the case, the trial court concluded that “there has been a fair question of fact for the jury to resolve 66 here, and I don’t see how this case can be decided by, as a matter of law, by a directed verdict.” (1200) Defendant Beals continues to disagree. 2. Competent Evidence Supported Expert’s Opinions Defendant Beals argues that competent evidence did not support Plaintiff’s expert’s opinions and that the expert ignored intervening events and actions that allegedly severed the “causal nexus” between Defendant Beals’s treatment and the suicide. (Def. Br., p. 28) Specifically, Defendant Beals contends that Mr. Mazella’s suicide was “too far removed” from his treatment of Mr. Mazella “on August 9, 2009 and before,” and furthermore that the subsequent events and acts that occurred “were independent of Dr. Beals’ treatment and not foreseeable.” (Def. Br., p. 28) In support of his argument, Defendant Beals sets forth a detailed chronology of events between August 11, 2009, the day after Defendant Beals doubled Mr. Mazella’s medications by telephone while on vacation, and September 12, the day on which Mr. Mazella died. (Def. Br., pp. 28-32) In recounting these instances, however, the chronology omits the critical details of the August 17 visit between Defendant Beals and Mr. Mazella, during which Defendant’s treatment of and attitude toward Mr. Mazella caused Mr. Mazella to cry, to feel humiliated and abandoned, and to become so mentally and emotionally unhinged that within three days of the visit he tried to commit suicide. Plaintiff’s expert described this final 67 visit as having “a very, very big impact, and it left him with no relationship. The main preventative of suicide that we know of is a good relationship with a therapeutically-oriented professional. He was bereft of that. He has nobody he’s going to trust, and it’s going to make it hard to trust after that.” (283-85) Dr. Laura Leso, the psychiatrist who attended to Mr. Mazella at CPEP immediately after his final visit with Defendant Beals, had this to say: This rejection, abandonment, and invalidation by Dr. Beals has affected him greatly on [an] unconscious level. I believe that this is an additional stressor that contributed to another setback. . . . [His] excessive compulsive disorder which has become exacerbated since early August, and there is now a secondary depression due to this exacerbation and the fulfillment of desired remission in less than timely manner. In addition to this his perceived abandonment, rejection, invalidation by Dr. Beals has been difficult for him to process. (1386-87) Our chronology and argument follow. Defendant Beals treated Mr. Mazella from October 1993 through August 17, 2009, exhibiting unequivocally negligent and continuous disregard for Mr. Mazella at a minimum over the final ten years, negligently prescribing a constant stream of prescriptions for PAXIL by phone without any discussion of symptoms. (170-72) From 1999 to 2009, Defendant Beals did not see Mr. Mazella even once to monitor exacerbations and remissions; to stave off episodes or prevent their escalation; or to reevaluate and reconsider his condition and diagnoses. (In August 2009, for example, Mr. Mazella’s family physician Dr. Becker, noting “[a]nxiety consistent 68 with mania followed by more depressive symptoms,” began to wonder if Mr. Mazella were not suffering from bipolar disorder instead of depression and anxiety. (1945) After more than a decade on PAXIL, at some point the dosage became less effective and, on August 9, 2009, Mr. Mazella called Defendant Beals for the first time in years, desperately begging for help. He was in a manic state with racing thoughts, unable to sleep and with a burning feeling in his head. (138; 1035; 1521; 1886) On August 9, 2009, without seeing his patient, Defendant Beals responded to Mr. Mazella’s complaints by doubling the PAXIL dosage instead of tapering up, and adding the anti-psychotic ZYPREXA, a combination similar to one that had caused Mr. Mazella to suffer an explosive reaction in April 1998. (137-42; 206- 07; see also 1929) Instead of referring Mr. Mazella to a physician to monitor him in his absence, Defendant Beals left a medically-untrained layperson, Mrs. Mazella, “to monitor him closely for suicidality” (141), despite knowing, as he admitted at trial, that “you have to monitor patients closely for suicidality, especially when . . . adjusting medication” (994). The following ensued: August 10, Defendant Beals doubled the ZYPREXA (208); 69 August 11, Mr. Mazella went to CPEP, complaining “my head is going crazy, the whole inside of my body is burning” (1532); and August 12, CPEP “reverse[d] the toxic state,” stabilized Mr. Mazella and released him (361). Following his visit to CPEP, Mr. Mazella was bouncing back and doing fairly well. However, on August 17, the ten years of Defendant Beals’s negligent treatment came to a head and plunged Mr. Mazella into a state from which he was never able to recover. On that date, during the one and only visit in over a decade, Defendant Beals treated Mr. Mazella in such a way that he reduced Mr. Mazella to tears with his head buried in his shirt, and caused him to leave dejected, humiliated and defeated, “a crumbling mess” as Mrs. Mazella testified. (215) Mr. Mazella and his wife, who witnessed the visit, told subsequent treating physicians and medical personnel about the visit and some of them contemporaneously noted the severely deleterious effect Defendant Beals’s treatment and abrupt dismissal on August 17, 2009 had upon Mr. Mazella. (260; 1386-87, 1404, 1473) The grossly unacceptable care on August 17 was not, however, an aberration for Defendant Beals, it was not a singular, stand-alone act of negligence. It was Defendant Beals manifesting, albeit in person, the same callous disregard he had shown toward Mr. Mazella for over a decade. Defendant Beals’s negligent 70 treatment of Mr. Mazella did not end on August 17 simply because he dismissed Mr. Mazella from his presence. Far from being “too far removed” from the suicide, Defendant Beals’s ten-plus years of treating of Mr. Mazella led him directly onto the path to suicide and, ultimately, headlong into his garage. Immediately after Defendant Beals’s August 17 interaction with Mr. Mazella, the following ensued: August 17, afternoon, Mr. Mazella went to CPEP and told medical personnel: “If you had a gun right now I’d kill myself” (1404); August 17-18, at CPEP, “[a]ccess to lethal means of suicide [was] restricted” (1409), and Mr. Mazella was placed on 15-minute checks (1478-79); August 18, Mr. Mazella complained of feelings of hopelessness and worthlessness, and reported to Dr. Frey at CPEP that he would kill himself “by any means possible” (1418, 1471, 1477); August 19, Mr. Mazella was “despondent [and] tearful” during an interview at CPEP, reporting to a clinician that he was suicidal and stating that “he was opening drawers to try and get pills this morning but his wife kept stopping him” (1404); August 19, evening, transfer as in-patient to Auburn Hospital (1613-1859); 71 August 20-21 (3½ days after his visit to Defendant Beals), Mr. Mazella ties a bathrobe belt around his neck and otherwise tries to break his own neck (181; 1633); August 25, Mr. Mazella tells Auburn Hospital medical staff he is not ready for release (228; 1626); August 27, released to his home (1816); September 3-9, Mr. Mazella has two non-medical in-take meetings at Brownell (627-28, 630; 2010-13); a third meeting is advanced to September 11 because Mr. Mazella appears so uncomfortable to the Brownell social worker (2011); September 10, Brownell calls Mr. Mazella to postpone the meeting, stating that his recent medical records will not be available in time and they cannot schedule a meeting with a physician before reviewing those records (2022); September 11, at the instigation of his wife, a distraught Mr. Mazella goes to speak with Carl Ellerman a psychotherapist social worker (1916-17); and September 12, Mr. Mazella goes into his garage. There were no unforeseeable steps or events or acts; there was no meaningful break in the chain from Defendant Beals’s office to Mr. Mazella’s garage. The negligent treatment that Mr. Mazella received while at Auburn Hospital – and which continued right up until the moment of his death as he 72 continued to take the lethal drugs prescribed at discharge – was due to, dependent upon, and a direct and foreseeable result of Defendant Beals’s reckless treatment and lack of care and attention to Mr. Mazella. The ten years of phone calls, the prescriptions sight-unseen, the single visit to Defendant Beals’s office with its attendant humiliation, rejection, abandonment and invalidation, the follow-up CPEP visits and the Auburn Hospital stay, which compounded the earlier rejection and abandonment, the lengthy and ineffectual Brownell in-take process, were all part and parcel of one unrelenting descent into madness and despair, initiated and fueled by Defendant Beals. Among the many opinions that Dr. Breggin gave with regard to proximate cause, all of which found ample support in the contemporaneous medical records, the truest and simplest was that Defendant Beals “started the process.” (388) On appeal to this Court, in support of his argument that Plaintiff failed to make a prima facie case for proximate cause, Defendant Beals also relies in great part on the Appellate Division’s dissenting opinion, quoting it extensively. (See Def. Br., pp. 32-33, quoting 2542-43, Mem. and Op., Smith, J., dissenting, pp. 4-5) As the paragraphs that Defendant quotes form part of the Dissenting Justice’s analysis of the weight of the evidence, we address it below, in Point III. In a light most favorable to the Plaintiff, it cannot be said that the evidence was such that it was “utterly irrational” for the jury to have reached the result it did 73 with respect to Defendant Beals. See Szczerbiak v. Pilat, 90 N.Y.2d 553, 556 (1997); Cohen, 45 N.Y.2d at 499 (1978). 74 C. POINT 3: The Weight of the Evidence Supported the Jury’s Verdict that Defendant Beals Was Negligent and that His Negligence Was a Proximate Cause of Decedent’s Injuries Standard of Review This Court should only set aside a verdict as contrary to the weight of the evidence where the evidence preponderates so greatly in the movant’s favor that the jury could not have reached its conclusion on any fair interpretation of the evidence. Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746 (1995); Stewart v. Olean Medical Group, P.C., 17 A.D.3d 1094, 1096 (4th Dep’t 2005) (citations omitted). Where the parties present conflicting expert testimony with respect to whether a defendant’s treatment of the decedent deviated from the standard of care, and/or with respect to the effect of that deviation on the progression of decedent’s illness, the decision to credit one party’s expert over another party’s expert is within the province of the jury. Stewart, 17 A.D.3d at 1096 (citations omitted). The non-moving party is entitled to the most favorable view of the evidence. Spano v. Onondaga County, 135 A.D.2d 1091, 1092 (4th Dep’t 1987) (citation omitted). In addition, there may be more than one proximate cause of a plaintiff’s injuries and a plaintiff need not exclude every other possible cause of injury to recover. Id. (citation omitted); see also Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560 n.2 (1999). It is sufficient that facts and circumstances are shown from which causation reasonably may be inferred. Spano, 135 A.D.2d 75 at 1092 (citations omitted). Moreover, this being a wrongful death case, the Plaintiff is held to a lesser standard of proof with regard to facts about which the decedent could have testified, since the decedent is unavailable to recount his version of the events. Id. (citing Noseworthy v. City of New York, 298 N.Y. 76 (1948)). Discussion A majority of the Appellate Division concluded that the trial was a prototypical battle of the experts, and that the jury’s acceptance of Plaintiff’s case was a rational and fair interpretation of the evidence. (2540, Mem. and Order p. 2, citing Holstein v. Community Gen. Hosp. of Greater Syracuse, 86 A.D.3d 911, 912 (4th Dep’t 2011), aff’d 20 N.Y.3d 892) The majority also respectfully noted for their dissenting colleague that “there may have been more than one proximate cause of decedent’s injuries.” (2540, citing Argentina, 93 N.Y.2d at 560 n.2) On appeal to this Court, Defendant Beals argues that the verdict was against the weight of the evidence because his actions “were too far removed from the suicide” and there were “countless independent and unforeseeable events” that severed any causal connection between his actions and the suicide. (Def. Br., pp. 34-35) Defendant relies heavily on the testimony of his medical expert, Dr. Benson Zoghlin (Def. Br. pp. 35-38), and quotes Justice Smith’s dissent at length (id. at pp. 33, 35). We first discuss Justice Smith’s dissent and then the testimony 76 of defense expert Zoghlin in conjunction with the testimony of Plaintiff’s expert Breggin. In reaching the conclusion that the weight of the evidence did not support the jury’s finding that the intervening acts of the other medical providers was not an intervening, superseding cause of decedent’s injuries, the dissenting Justice makes three findings of fact. We respectfully disagree with those findings. First, the dissenting Justices finds that “the evidence establishes that decedent’s condition improved after defendant stopped treating him, and that the immediate cause of his death was either the disease from which he suffered or the medications that he took prior to his suicide.” (2542) We believe, to the contrary, that the evidence establishes that Mr. Mazella’s condition never improved after Defendant Beals stopped treating him on August 17. During that last visit, Mr. Mazella had a break down in the office, including sobbing and covering his head with his shirt. (213; 1012; 1887) Upon Defendant’s then abruptly dismissing him from the office and from his care, Mr. Mazella was so distraught and depressed that he brought himself to CPEP to have medical personnel watch over him so that he would not commit suicide there and then. (215) He did not improve thereafter; instead, he deteriorated as evidenced by his attempted suicide just three and a half days after Defendant Beals stopped treating 77 him. That he was unsuccessful because medical personnel were watching over him while he was an in-patient at a psychiatric hospital is beside the point. Mr. Mazella, for the first time in his life, acted on the will to commit suicide, and that occurred right after Defendant Beals dismissed him. Neither the underlying disease nor the medications changed that will to kill himself. His condition did not meaningfully improve, it plummeted. In fewer than three weeks upon release from the hospital, when he had a few moments alone, he carried through on that initial suicide attempt. Second, the dissenting Justice finds that Plaintiff’s expert testified that “the later treatment providers were negligent and, most notably, that the psychiatrist [Co-Defendant Mashinic] 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, . . . [and] if the social worker hadn’t got the job done, to make sure somebody else got it done.’” “Thus,” the dissent finds, “even according to the testimony of plaintiff’s expert, liability for decedent’s suicide lay with the final treating psychiatrist.” (2543) We disagree. We believe, to the contrary, that the evidence establishes that Plaintiff’s expert was not comparing Defendant Doctors Beals and Mashinic when stating where the buck stops. (See 286-87) Rather, Plaintiff’s expert was comparing Co- Defendant Mashinic to non-physician personnel at her hospital, primarily the social 78 worker coordinating discharge, and laying the blame squarely at Co-Defendant Mashinic’s feet – as opposed to the social worker’s feet – for failing to have a follow-up psychiatrist at the ready to take over Mr. Mazella’s care upon discharge from her hospital. This “buck stops” testimony by Plaintiff’s expert had nothing to do with Defendant Beals. Plaintiff’s expert never absolved Defendant Beals; quite to the contrary, he testified that the negligence of both of the defendant doctors were substantial causes of the decedent’s injuries. (283-87) Third, the Dissenting Justice finds that 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,” severed any causal connection between defendant’s prior negligent treatment of decedent and decedent’s suicide. (2543) Again, we respectfully disagree. We believe, to the contrary, that the evidence establishes that extensive medical treatment was required to try to save Mr. Mazella, particularly in light of his suicide attempt after Defendant Beals’s terminated their relationship. “[A]n intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability.” Lynch v. Bay Ridge Obstetrical and Gynecological Associates, P.C., 72 N.Y.2d 632, 636-37 (1988) (citation omitted). It may have turned out that this 79 extensive medical treatment provided by others was negligent, but it was not separate and apart from Defendant Beals’s treatment. It did not sever but rather extended the connection between Defendant’s Beals’s negligent treatment and decedent’s suicide. This is not an either-or situation, the law allows for more than one proximate cause. See Argentina, 93 N.Y.2d at 560 n.2. But for Defendant Beals’s negligence, Mr. Mazella would not have come under the care of Co- Defendant Mashinic, and not in the condition she found him. Turning to Defendant’s reliance on the testimony of his expert Dr. Zoghlin, for every one of Dr. Zoghlin’s opinions that Defendant Beals highlights, there is a counter opinion that Plaintiff’s expert Dr. Breggin gave. Moreover, several of Dr. Zoghlin’s opinions favor the Plaintiff. In the end, as the Appellate Division majority stated (2540), it was for the jurors to resolve the battle of the experts and it cannot be said that their decision in favor of the Plaintiff could not have been reached on any fair interpretation of the evidence. Defendant Beals emphasizes the following opinions of Dr. Zoghlin: (1) the failure to see Mr. Mazella for ten years while renewing his PAXIL prescription did not contribute to the suicide, in large part because the readjustment of Mr. Mazella’s medical regime at Auburn Hospital negated the impact of Defendant Beals’s negligence in not seeing Mr. Mazella for ten years; (2) doubling the PAXIL dosage on August 9 was not a contributing factor in the suicide, but even if 80 negligent, the August 11 admission to CPEP severed any connection between Defendant Beals’s negligence and the suicide; (3) the events of August 17 were not a factor in the suicide and, in any event, the August 17 CPEP visit and the August 19 Auburn Hospital admission were independent and intervening medical treatments; and (4) the cause of Mr. Mazella’s suicide was his major depressive disorder. (Def. Br., pp. 35-38) The jury considered and rejected Dr. Zoghlin’s opinions, which was its prerogative. The jury based its decision on other medical opinion testimony, and its verdict represented a fair and reasoned interpretation of that evidence. First, with regard to the ten years (see Def. Br., pp. 35-36), Dr. Breggin gave opinion testimony that having no patient contact over the ten years that Defendant Beals continued to administer PAXIL was a departure and a substantial factor in causing the suicide. (253, 256, 283) Ten years of PAXIL in and of itself was a departure in that it caused a horrific withdrawal (254-55, 283), and without any concurrent monitoring during that entire time there was no way to know if Mr. Mazella indeed needed to continue on the PAXIL, or if he would have been in remission without it (289, 294-95). He also testified that there was the risk that abruptly stopping his PAXIL, which Co-Defendant Mashinic ultimately did, after prescribing it for so many years would result in suicide. (320) Moreover, the lack of contact over so many years deprived Mr. Mazella of the necessary physician- 81 patient relationship, which, Dr. Breggin testified, is the “main preventative of suicide.” (283-85) On cross-examination, defense expert Dr. Zoghlin agreed that it was a deviation from the standard of care to continue to prescribe PAXIL for ten years without seeing Mr. Mazella, that failing to see a patient for ten years potentially exposes him to a greater risk, and that seeing a patient periodically permits the physician to incorporate warnings related to prescription drugs such as PAXIL into those visits. (731-33, 738) Dr. Zoghlin also agreed that trust between a physician and a patient is absolutely necessary for effective treatment and that Defendant Beals did not “do anything to engender further trust” in Mr. Mazella. (733-34) Defense expert Dr. Zoghlin effectively testified that Defendant Beals’s negligence in prescribing medication without seeing Mr. Mazella would have been a substantial factor in the death, but for follow-up physicians who “readjusted substantially” Mr. Mazella’s medications. (705-06) Dr. Breggin testified that Defendant Beals was responsible for those actions and inactions of the follow-up physicians. (387) Some of the follow-up physicians stabilized Mr. Mazella, but others exacerbated the catastrophic plunge that Defendant Beals initiated. It was well within the jury’s province to adopt Dr. Breggin’s opinions and find that the follow-up physicians were not able to effectively clean up Defendant Beals’s mess and thus, Defendant Beals remained liable for Mr. Mazella’s death. 82 Second, with regard to the PAXIL doubling (see Def. Br., pp. 36-37), Plaintiff’s expert Dr. Breggin testified that doubling the medications over the phone without seeing Mr. Mazella was a departure that was a contributing factor in the suicide: “the doubling of the dose of the PAXIL on the phone, sight unseen, with no records, was the real beginning of the catastrophe, because at that moment, he seemed as though he was having a problem like he had had twice before, approximately ten and maybe 15 years earlier, and probably could have gotten out of it as well as he had before. . . . And adding ZYPREXA, I think that’s a real turning point for him, even though he’s only on the ZYPREXA for a few days. It’s the start of the big decline.” (284, emphasis added; see also 255-56, 349, 355) Defendant Beals’s practice of not bothering to see his patients had perhaps the greatest impact at this point in early August because he had become so cavalier that he not only prescribed medications without seeing them, but now he did so without even looking at their records. Had Defendant Beals abided by the standards of care, he would have reviewed Mr. Mazella’s chart, seen that Mr. Mazella had pulled through similar episodes without his medications having to be so dramatically changed (357-59), and he would have been reminded that when the PAXIL was doubled once in the past, Mr. Mazella had a traumatic reaction. (1892-93; see also 1929) 83 Dr. Zoghlin testified that increasing the PAXIL from 20 mg to 40 mg was not a departure because Defendant Beals had background knowledge of Mr. Mazella (711), and because Mr. Mazella had taken an even higher dose in the past (714). Dr. Zoghlin ignored that when Mr. Mazella did have a higher dose in the past, it was reached by 10 mg increments, not by doubling, and that when Mr. Mazella had that 50 mg dose, it “made him crazy” and he went to a graveyard and contemplated suicide. (329, 331-32, 339; 979, 1050) In addition, Dr. Zoghlin testified that it was acceptable to double medications by phone, that it need not be done in person, because psychiatrists rely on what patients tell them, not on what they observe. (712, emphasis added) The jury was entitled to reject this comment out of hand. Furthermore, Dr. Zoghlin again testified that an intervening hospital visit and “major change in the medications” prevented the increased PAXIL and addition of ZYPREXA from being a substantial factor in causing the death. (715- 16) The jury was entitled to reject this attempt to minimize Defendant Beals’s role, and find more than one proximate cause of death, relying on Dr. Breggin’s opinion that but for Defendant Beals’s negligently doubling the medications, Mr. Mazella would not have had to enter the hospital where Co-Defendant Mashinic exacerbated Mr. Mazella’s condition by making major medication changes. (284) Third, with regard to the final visit of August 17 (see Def. Br., pp. 37-38), 84 defense expert Dr. Zoghlin gave testimony devastating to Defendant Beals: Q [Def Counsel] Do you think it would have been inappropriate and a violation of standards if Dr. Beals, knowing, or at least believing that his patient was a risk of potentially harming himself and yet was unwilling to go to the hospital, do you think it would have been a deviation for Dr. Beals to have let his patient leave the office that day [August 17]? A [Dr. Zoghlin] I think it would have been. Q And why so? A At that moment, the first obligation is to protect the patient, and the patient that is telling you that they can’t guarantee that they are not going to hurt themselves, you have to provide a barrier between what might be some self-injurious act and the patient. Sometimes that’s the police, and sometimes they are called to control a situation and get the patient into appropriate care. (720) Following Dr. Zoghlin’s testimony, Defendant Beals testified that during that August 17 visit, he asked Mr. Mazella if he would act on his suicidal thoughts, “but he couldn’t assure me that he wouldn’t act.” (1012) In addition, he testified that he raised his voice to the Mazellas because “they were not willing to listen, at least on the previous two occasions that day, to my suggestion, my recommendation that they go immediately to CPEP.” (1015) Defendant Beals’s own expert witness said it would have been a deviation to let Mr. Mazella leave the office that day if he believed Mr. Mazella might hurt himself, and that is precisely 85 what Defendant Beals did. Instead of calling the police and having Mr. Mazella involuntarily committed to a psychiatric facility for his safety, as he stated he believed was necessary, he dismissed him from his care and let him leave the office that day with his wife. When subsequently asked whether the events on that August 17 were a substantial factor in causing Mr. Mazella’s suicide, Dr. Zoghlin could not deny it, and hedged: “I think it’s very hard to say. Because it really depends here on the patient’s perception of what happened.” (721) The jury was entitled to rely on Mrs. Mazella’s testimony as to their negative perception (213-15), and on the opinions of Dr. Breggin, who testified that physicians cannot turn their backs on patients, that Defendant Beals’s actions on August 17 were a departure from the standards of care, that the abandonment and rejection were additional stressors on Mr. Mazella, and that they were a significant contributing factor in the suicide (258-61). Finally, with regard to the cause of suicide (see Def. Br., p. 38), defense expert Dr. Zoghlin testified that it was Mr. Mazella’s major depressive disorder as opposed to anything that Defendant Beals did or did not do. (741) Plaintiff’s expert Dr. Breggin, on the other hand, laid the blame squarely at the feet of Defendants Beals and Mashinic. He testified that three of the four medications that Mr. Mazella was taking at the time of his suicide carried heightened risks for 86 suicidality. (268, 269, 274-75) In particular, he gave his medical opinion based on clinical and scientific studies that the “very uncommon” and “very violent and bloody” nature of Mr. Mazella’s suicide, “literally ripp[ing] out a piece of his neck with a knife,” was associated with anti-depressant usage (281-82), and that a suicide note stating that “the pain is too much” is how people with akathisia – a state of profound internal discomfort brought on by overmedication – talk (493). As the majority opinion notes, this was the prototypical battle of the experts. (2540) The jury’s decision to adopt Dr. Breggin’s opinions was more than sufficiently supported by the facts. In reviewing the totality of the evidence in the light most favorable to the Plaintiff, and considering that there may be more than one proximate cause of death and that the Plaintiff need not exclude all the other possible causes, and holding Plaintiff to a lesser standard of proof, pursuant to the Noseworthy doctrine, with regard to statements Mr. Mazella may have made and perceptions he may have had, it cannot be said that the evidence preponderated so greatly in Defendant Beals’s favor that the jury could not have reached its conclusion on any fair interpretation of the evidence. Indeed, we believe that the evidence so preponderated in Plaintiff’s favor that even if this Court were to find that it was error to have admitted the OPMC Consent Order and/or the photograph of Mr. Mazella shortly after his death, such error was harmless. 87 If this Court were to reverse the verdict and remand for a new trial, we would ask that in the interest of justice a new trial be granted as to all defendants. See Nicholas v. Reason, 84 A.D.2d 915, 916 (4th Dep’t 1981) (“Finally, while it may be that the jury’s verdict as to defendant Reason was not against the weight of the evidence inasmuch as there was a difference of opinion between experts, nevertheless, in our view it would be eminently unfair to plaintiff on the retrial of this case for defendant Dr. Reason to be excluded.”) (citing Joyce v. Kowalcewski, 80 A.D.2d 27, 30, 437 N.Y.S.2d 809 (4th Dep’t 1981)). While it may be that the jury’s verdict as to Co-Defendant Mashinic was not against the weight of the evidence inasmuch as there was a difference of opinion between experts as to whether her negligence was a proximate cause of the death, nevertheless, it would be eminently unfair to Plaintiff Mazella on the retrial of this case for Defendant Dr. Mashinic to be excluded. 88 D. POINT IV: The Trial Court Properly Charged the Jury to Render a General Verdict as to Liability and Damages Defendant Beals raises two issues in his fourth Point, the first regarding the verdict sheet as to liability and the second regarding the verdict sheet as to damages. (Def. Br., pp. 62-64, 64-74) We address both in order. Verdict Sheet as to Liability Plaintiff’s theory of liability as to Defendant Beals was that his ten years of negligently treating Mr. Mazella – encompassing his administration of drugs, the lack of office visits, the lack of substantive telephone conversations and the failure to monitor and evaluate Mr. Mazella’s fluctuating medical condition – contributed to Mr. Mazella’s relapse in early August 2009, which led directly to medication modifications and a face-to-face office visit on August 17, which in turn led to a series of hospitalizations, a suicide attempt and a completed suicide. The trial court properly charged the jury to render a general verdict as to this single indivisible course of negligent conduct. On appeal, Defendant Beals argues that there were three theories of liability and three discrete and separate allegations of malpractice: the failure to see Mr. Mazella between August 1998 and August 19, 2009; the August 9, 2009 doubling of Paxil and addition of Zyprexa; and the August 17, 2009 final visit. (Def. Br., p. 58) At trial, he asked the trial court to include a special verdict sheet, requiring the jury to consider separately four instances of negligence: (1) the failure to see Mr. 89 Mazella for ten years, (2) the August 9, 2009 phone call doubling the PAXIL and adding ZYPREXA, (3) the August 10, 2009 phone call doubling the ZYPREXA, and (4) the August 17 final visit. (Def. Br., pp. 59-60) The failure of the court to do as he requested, he argues, was reversible error. We disagree. Plaintiff did not set forth three theories of liability. Rather, it appears that Defendant Beals may have adopted this approach from the OPMC’s 2012 charging document, which alleged four instances of negligence, dividing into two the failure to have face-to-face visits and to adequately monitor Mr. Mazella. (See 421a) From the time of the 2010 complaint through to trial, including the amended bill of particulars, Plaintiff has maintained a single unitary theory of negligence with respect to Defendant Beals’s care and treatment of Mr. Mazella, comprising the following: (1) failure to properly prescribe medications such as PAXIL and ZYPREXA along with other medications; (2) improperly prescribing medication and/or changed dosages over the telephone without properly evaluating the patient; (3) failure to properly monitor the patient and the effects of the prescribed medications during the course of treatment; (4) failure to properly diagnose the patient’s worsening clinical condition and problems that were presented at the final office visit; (5) failure to continually advise the patient of risks associated with the medicines and obtain a fully informed consent regarding the potential adverse reactions of the prescribed drugs and known risks associated with use of said drugs; (6) failure to refer the patient for psychological and/or psychiatric evaluation and/or treatment; (7) failure to recognize the patient was suffering from a drug-induced acute akathisia; (8) unnecessarily exposing the patient to PAXIL for over 15 years, making withdrawal difficult and enhancing the risk of suicide; (9) failure to detect adverse effects of the prescribed drugs; (10) failure to keep abreast of the medical literature with respect to the dangers of the medications being 90 prescribed for this patient via the telephone; (11) abandonment of the patient during the final office visit without providing for follow-up care by another physician to monitor the medications that he prescribed; and (12) failure to fully advise the patient’s family members as to what side effects to watch for as evidence of an adverse reaction of the various medications; and (13) that as a direct and proximate result of this negligence, the patient committed suicide. (See 55a & 69a-70a) Defendant Beals’s actions and omissions between 1999 and August 8, 2009 (that is, his active prescription writing and his omitting to monitor and to establish and maintain a healthy physician-patient relationship) – the phone calls of August 9 and 10 – and the visit of August 17 – were not separate or separable incidents as Defendant Beals would have it. There would have been no phone calls on August 9 and 10, had Defendant Beals fomented a healthy relationship with Mr. Mazella instead of ignoring and neglecting him between 1999 and August 8, 2009. There would have been no August 17 visit, had Defendant Beals fomented a healthy relationship with Mr. Mazella instead of ignoring and neglecting him between 1999 and August 16, 2009. There would have been no Auburn Hospital admission but for the negligent treatment Mr. Mazella received from Defendant Beals between 1999 and August 17, 2009; nor would there have been a frantic attempt to see a physician at the Brownell Center but for the negligent treatment between 1999 and August 17, 2009. It is impossible to separate out every single act (and 91 omission) that occurred during the course of those ten years and to ask a jury to decide which, in isolation, led to the suicide. There was testimony by Plaintiff’s witness Dr. Breggin (285) and Defendant’s witnesses Dr. Zoghlin (733) and Dr. Ellerman (573), as well as by Defendant Beals (1036-37), that it is crucial for effective mental health treatment to have face-to-face visits to develop a strong physician-patient relationship. To ask the jury to consider whether Defendant Beals’s treatment of Mr. Mazella on August 17, in isolation, was a substantial cause of the suicide makes no sense in the context of this case. A doctor raising his voice and berating a patient, as Mrs. Mazella claims Defendant Beals did on August 17, does not in and of itself cause an individual to be hospitalized and kill himself. But a doctor raising his voice and berating a patient whom he has ignored for ten years is very different. Ask the jury to consider August 17 as part and parcel of one long-spanning destructive physician-patient relationship and it becomes readily apparent that Defendant Beals’s actions and inactions were a substantial factor in Mr. Mazella’s suicide attempt as well as in his completed suicide. Defendant Beals’s treatment of Mr. Mazella fell far below the standard of effectiveness, and landed somewhere between negligent and reckless. If the trial court should have asked the jury to consider liability with respect to the phone calls of August 9 and August 10 separately, as Defendant Beals 92 argues on appeal, perhaps it should also have required the jury to consider the phone calls during each depressive bout that Mr. Mazella suffered during his 15- year-long relationship with Defendant Beals and whether during that time the medication adjustments were appropriate. Each episode was a set-back for Mr. Mazella, and over time caused his mental health to deteriorate such that he became a life-long dependent PAXIL user, and ultimate suicide victim. In fact, on April 7, 1998, Defendant Beals suggested he take PAXIL for the remainder of his life as the episodes were recurring, and explained to him that studies were indicating that “the more they recur, the harder they are to treat.” (971, 987-88) Perhaps the trial court should have required the jury to consider whether that discussion was also a substantial factor in the suicide. Once we go down the path of parsing phone calls and prescription refills, there is no end to the list of possible interrogatories to submit to a jury. The task risks becoming absurd, just as it is absurd to separate out incidents which strike one party or the other as particularly egregious. The entire ten-plus years of treatment was egregious. A decades-long chronic disease such as the one for which Defendant Beals was treating Mr. Mazella simply does not lend itself to separate and discrete allegations of malpractice. This was not, for example, a case such as Davis v. Caldwell, which Defendant Beals cites in his opening brief (see Def. Br., pp. 61- 62), where the plaintiff sued on five theories of negligence after undergoing a 93 bilateral subcutaneous mastectomy, resulting in the removal of substantial portions of both breasts, accompanied by breast reconstruction with silicone implants, only to discover that pathological and X-ray studies of segments of the tissue removed disclosed no malignancy. Davis v. Caldwell, 54 N.Y.2d 176 (1981). In Davis, the type of negligence was such that it was reasonable for the court to instruct the jury to consider five separate claims, including: erroneous diagnosis of plaintiff's condition by the physician performing the surgery; failure to have performed a biopsy prior to surgery; performance of an unnecessary operation; failure to have followed accepted standards of medical care in the community; and failure, prior to the surgery, to have obtained an informed consent. Id. at 178-79. Moreover, the reversible error in Davis was that after instructing the jury to consider each claim, it then required only a single general verdict. Id. at 179. Here, the court did not instruct the jury as to three or four separate claims. (See 1296-1331) Here, to the contrary, there was only one theory of negligence and one cause of action against Defendant Beals in the Complaint: Defendant Beals was negligent with respect to the treatment he rendered to Plaintiff’s decedent. (55a) There was only one question to ask, and one liability verdict to render. There is nothing about this case and the trial that called for separate interrogatories; the only reason Defendant Beals requested them for himself in his “Proposed Jury Verdict 94 Sheet” (2463-66), and not similarly for his Co-Defendant (2467-68), was to water down the egregiousness of his negligence, in the hope that by asking the jurors to look separately at each droplet they might fail to see the deluge. The Appellate Division disagreed with Defendant Beals, concluding that “the court’s failure to submit a special verdict sheet to the jury was not prejudicial and does not require a new trial.” See 2540 (citing Suarez v. New York City Health & Hosps. Corp., 215 A.d.2d 287, 287 (2d Dep’t 1995); Kolbert v. Maplewood Healthcare Ctr. Inc., 21 A.D.3d 1301, 1301-02 (4th Dep’t 2005)). The dissenting Justice did not address this issue. Even if it was error of the trial court to submit a special verdict sheet, we agree with the Appellate Division that any error was not prejudicial. As our arguments in the previous Points demonstrate, there was sufficient proof to support each of Defendant Beals’s three distinct theories of negligence and proximate cause, such that any error committed by providing a single general charge was harmless. See Kolbert, 21 A.D.3d at 1301-02 (“Even assuming, arguendo, that plaintiff advanced three separate theories of negligence, we conclude that each is supported by legally sufficient evidence . . . Thus, ‘in the absence of prejudice to plaintiff there is no need to reverse as a result of the court’s failure to submit a special verdict sheet.’”) (citations omitted); cf. Davis, 54 N.Y.S.2dat 178 (“When multiple theories of liability have been submitted to a jury 95 which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories.”). First, Doctors Breggin (253, 283) and Beals (140) and Mashinic (190-94) all testified that an individual on anti-depressant and anti-psychotic medications needs to be monitored for suicidality. According to all the testimony, Defendant Beals was negligent in not monitoring Mr. Mazella while prescribing suicide-inducing drugs for more than ten years. As a result of the mismanagement of his medications, in August 2009 Mr. Mazella rapidly spiraled downward, he had to be hospitalized involuntarily, and he fell under the care of Co-Defendant Mashinic, who negligently prescribed additional drugs that led Mr. Mazella into his garage with a knife. The ten years of neglect was a substantial factor in bringing about the suicide. Second, Doctors Breggin (284, 320, 349-50), Zoghlin (708), Schwartz (900) and Defendant Beals himself (967) testified that physicians should taper individuals up and down PAXIL, that it is “imprudent” to stop patients suddenly or “cold turkey,” otherwise the side effects include the heightened risk of a suicide. On August 9 and 10, 2009, Defendant Beals doubled the PAXIL and doubled the ZYPREXA, following which Mr. Mazella spiraled downward, likely in an acute state of medication-overdose, for which he was hospitalized repeatedly, and fell 96 under the ultimately destructive care of Co-Defendant Mashinic. The medication increases on August 9 and 10 were substantial factors in causing the suicide. Third, Doctors Breggin (259, 275-76) and Zoghlin (738-39) and Co- Defendant Mashinic (193-95) and Defendant Beals himself (149-50) all testified that a physician cannot just abruptly stop caring for a patient without another physician in place to monitor medications. On August 17, 2009, Defendant Beals abruptly dismissed Mr. Mazella from his care without a physician in place to monitor his prescriptions. Mr. Mazella, who was distraught, humiliated and decompensated, went directly to the hospital, telling his wife that he needed someone to watch him. Then he fell under the care of Co-Defendant Mashinic at Auburn Hospital, and killed himself shortly thereafter. The abandonment on August 17 was a substantial factor in causing the suicide. Charging the jury to render a single general verdict was appropriate in this type of medical malpractice and wrongful death action; however, even if not, the evidence supported negligence and proximate cause with regard to each incident that Defendant Beals noted in his request for separate interrogatories, such that any charging error was harmless. Verdict Sheet as to Damages The trial court properly charged the jury to state a total amount of monetary or economic loss, if any, as to Mr. Mazella’s wife and three children. The verdict 97 sheet specifically instructed the jury that for the children, the monetary loss should include the deprivation of training, advice and assistance, and the loss of parental nurturing and care and education. (2439) In addition, in his charge, the trial judge instructed the jurors that any award to the children would be for deprivation and loss, and that Mr. Mazella was not legally obligated to contribute to the support of any child over the age of 21. (1322, 1325) The jury awarded Mr. Mazella’s wife $800,000; it awarded $200,000 to his youngest daughter who was 18 at the time of his death; and it awarded $100,000 each to his other two daughters who were both older than 21 at the time of his death. (2439-40) The verdict sheet properly asked the jurors to state the number of years over which they intended the amounts to compensate Mr. Mazella’s family members. (2440) The jurors wrote “5 years” for everyone. (Id.) On appeal, Defendant Beals argues that the trial court erred in not using his proposed verdict sheet, breaking the compensable loss into four elements: (1) loss of earnings; (2) loss of services; (3) loss of parental guidance; and (4) the possibility of inheritance. (Def. Br., pp. 64-65) In actuality, Defendant Beals did not suggest exactly that breakdown in his Proposed Jury Verdict Sheet, but rather loss of earnings and loss of services for Mrs. Mazella (2469), and loss of parental guidance for the daughters (2470). Defendant Beals also argues that the court failed to use a jury verdict sheet that specifically required the jury to apportion any 98 award between past and future damages. (Def. Br., p. 72) However, Defendant Beals did not propose such a verdict sheet. In any event, these alleged errors, he argues, affect appellate review of the manner in which the jury reached the award, the appropriateness of that award, and what reductions from the award are appropriate for income tax. (Def. Br., pp. 65, 69, 72) Award for Mrs. Mazella With regard to Mr. Mazella’s wife, Defendant Beals concedes that testimony established that she sustained pecuniary losses in terms of income and services, but he complains that there is no way to determine the appropriateness of the award, and what reductions are appropriate for income tax. (Def. Br., p. 69) The findings of Plaintiff’s expert economist, as set forth in his report (2064), were that the net wage loss was $678,724 (for 9 years), the social security payments were $59,595 (for 9 years), the net pension loss was $873,962 (for 18 years), and the home contribution loss was $166,093 (for 16 years). During its deliberations, the jury sent out a note specifically requesting to see the economic breakdown exhibit (2445), and the court marked it and sent it in to the jurors (1346). The jury then awarded Mrs. Mazella $800,000, which was less than half of the $1,778,374 total that the economist calculated. The economist calculated as if Mr. Mazella would have lived more than 5 years, and it appears that the jury took that into account when reducing his figure by more than 50%. 99 The evidence supports the $800,000 award and, we believe, it would have supported the appropriateness of an even greater sum over a greater period of years. As to the income tax reduction, Defendant Beals raised this issue in post- trial pleadings and proposed that Mr. Mazella’s taxable income for each of the five years be $165,057. (13a) The trial court found that at no time did Mr. Mazella ever earn $165,057 per year. (Id.) The court found instead that the appropriate method of determining future income taxes with “reasonable certainty,” as required under CPLR § 4546, was to adopt the actual wage of Mr. Mazella and carry it forward for the five-year period identified by the jury. (Id.) The court used Mr. Mazella’s 2008 joint tax returns as a baseline and added a 3% increase for inflation for the following five years. (Id.) The court found the total amount of federal and state taxes attributable to Mr. Mazella would have been $77,567.19. (Id.) The court’s determination should not be reversed. Award for the Children With regard to Mr. Mazella’s children, Defendant Beals argues that there was no testimony to establish the support Mr. Mazella gave to his children, although he does concede that there was evidence establishing that they were “very close to their father.” (Def. Br., p. 71) We disagree. 100 With regard to Mr. Mazella’s daughter Marissa, the eldest child, there was testimony that, as a result of his life-long nurturing and advice, she studied health exercise science at college, very similar to her father’s studies, and that she became a nurse. (856-57) Mr. Mazella helped her to choose which college and graduate schools to attend, and to pick out a house; he gave her advice on finances and budgeting; and he helped her go through the pros and cons of major decisions in her life. (858) In awarding her money to compensate for the loss of parental guidance, the jury was entitled to infer from her testimony that Mr. Mazella would have continued to guide her as he always had in her personal, professional and financial decision-making. The evidence supports the jury’s modest $100,000 award. With regard to his daughter Leah, the middle child, there was testimony that Mr. Mazella taught her to do everything and that it was because of him that she chose her profession and became a teacher just as he was. (746, 748) In awarding her money to compensate for the loss of parental guidance, the jury was entitled to infer from her testimony that Mr. Mazella would have continued to guide her as he always had in the past, particularly with regard to being a teacher. The evidence supports the jury’s modest $100,000 award. With regard to Mr. Mazella’s youngest child Alicia, who was only 18 when her father killed himself, there was testimony that he coached her in soccer every 101 year since she was five, that he attended every event in her school life, and that he helped her decide where to go to college. (853-54) “We were like best friends. I told him everything.” (854) In awarding her money to compensate for the loss of parental guidance, the jury was entitled to infer from the testimony at trial that Mr. Mazella would have continued to guide her as he had throughout her childhood and that, as he did for her older sisters, he would have guided Alicia in choosing a career and a graduate school, and assisted her in making financial decisions and, as her best friend, he would have helped her with her most important personal life decisions. The evidence supports the jury’s $200,000 award, especially where she benefitted from many fewer years with her father than did her sisters (five and seven years older than she). Past and Future Damages Defendant Beals argues that the trial court erred in not using a verdict sheet that required the jury to apportion the award between past and future damages, and that such failure is prejudicial because it makes it impossible to know how the jury arrived at its award or the appropriateness of the award. (Def. Br., p. 72) Defendant Beals did not include this in his proposed verdict sheet, but raised this issue in his motion to set aside the verdict asserting that a 3% discount rate be applied to the entire $1,200,000 verdict. (11a) 102 The trial court disagreed. The court found that Defendant Beals was assuming that all damages were awarded into the future, but that the evidence did not support his position. Instead, the court found that the evidence at trial suggested that loss began at the date of death. (11a) In reliance on Rohring v. City of Niagara Falls, 84 N.Y.2d 60 (1994), and based on the weight of the evidence, the trial court found that the jury’s assessment of the five-year period of compensation was from the date of death through the five-year anniversary of that death. (11a-12a) The jury verdict occurred 1,165 days after the death and 661 days before the expiration of the five-year period of compensation. Accordingly, the trial court determined that the discounting of future damages was limited to the 661-day period. (12a) Applying the rate in effect for the ten-year U.S. Treasury Bond as of the date of the verdict (1.66%), the court found that the discounted value of the future wrongful death damages was $412,548.77. (Id.) The trial court’s finding should not be reversed, as it is supported by evidence adduced at trial, including testimony that Mr. Mazella’s wage loss commenced at the time of death, that the loss of his services commenced at his death, and that the loss of parental guidance commenced at death. The Appellate Division concluded that this issue, and any of Defendant’s remaining contentions, “lack merit” (2540); the dissenting justice did not disagree. If this Court were to determine that the trial court erred in not instructing the jurors to break down the awards into specific economic categories and/ or to apportion the awards between past and future damages, and that the error was prejudicial, the remedy would be a re-trial on damages only, not a new trial as Defendant Beals asserts. (Def. Br., p. 7 4) VI. CONCLUSION For the reasons stated above, Plaintiff submits that this Court should affirm the jury verdict as against Defendant Beals, and the orders appealed from denying Defendant Beals' s motion to set aside the verdict. If, however, this Court were to reverse the verdict and remand for a new trial, we would ask that in the interest of justice a new trial be granted as to all defendants. Dated: New York, New York July 16, 2015 Respectfully submitted, By: ~ Alessandra DeBlasio Attorney At Law 103 40 Exchange Place, Suite 2010 New York, New York 10005 (212) 321-7084 Of Counsel to DELDUCHETTO & POTTER One Lincoln Center, Suite 275 Syracuse, New York 13202 Attorneys for Plaintiff-Respondent