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Dr. BK and Dr. JM …cont

CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.

In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party’s share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.

It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.

Here plaintiffs Bill of Particulars, which was served on Downstate Hospital prior to dismissal of her claims against Downstate in this action, alleges that the hospital caused the following injuries: death; infections; sepsis; multiple surgeries; ulcers; emphysoma; respiratory failure; tracheostomy; infected nephrostomy site; prolonged tracheal intubation; chronic renal insufficiency; thrombocytopenia; multiple blood transfusions; disseminated intravascular coagulopathy; respiratory distress; pneumonia; prolonged mechanical ventilation; multiple decubitus ulcers; shock; acute renal failure; hemorrhage; severe pain; mental anguish; anxiety; loss of enjoyment of life; fear of impending death; cardiopulmonary arrest; fevers; anxiety; mental anguish; emotional distress and loss of enjoyment of live.

During the trial against Dr. BK plaintiff maintained that the decedent’s five month hospitalization and death resulted from the negligent surgeries performed by Dr. BK Dr. JM testified that the second operation was a substantial factor in the decedent’s prolonged hospitalization due to lung damage. There was evidence presented that pneumonia was a complication resulting from the use of a ventilator required as a result of the surgically caused lung injury. Plaintiffs expert also opined that multiple blood transfusions during and following the surgeries exposed the decedent to the risk of infection.

Dr. H opined that prolonged hospitalization and prolonged use of a respirator caused episode of pneumonia, the need for a bronchoscopy, urinary obstruction requiring a tube to drain the kidneys, urinary tract infections, sepsis shock and ultimately death. Dr. H testified that the infection which resulted in sepsis, shock and death, were caused by three bacterial organisms which were most likely associated with hospital infections. Dr. H further testified that systemic inflammatory response syndrome, which induced respiratory distress, was associated with injuries to the lungs during the heart surgeries. Dr. BK treated the decedent in the cardio-thoracic intensive care unit September6, 2004, at which time he was transferred to the medical intensive care unit. He died six days later on September 12, 2004. Thus, upon this record it cannot be said that damages for pain and suffering are divisible as between Dr. BK and Downstate. Accordingly, Dr. BK was entitled to apportionment against Downstate in this action.

Next, with respect to the jury’s damages award, Dr. BK argues that the awards in the amount of $6 million for pain and suffering and $ 13 million for loss of services deviate materially from what would be reasonable compensation, and that the jury’s $780,000.00 award for wrongful death was not proven with reasonable certainty.

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