This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 119 

Janice Mazella, &c.,

 Respondent,

 v.

William Beals, M.D.,

 Appellant,

et al.,

 Defendant.

Kevin T. Hunt, for appellant.

Alessandra DeBlasio, for respondent.

RIVERA, J.:

In this medical malpractice and wrongful death action,

we conclude that the trial court erroneously admitted evidence

concerning defendant's negligent treatment of twelve other

patients, and that this evidence tainted the jury's deliberative

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process. On the facts of this case, the trial court abused its

discretion by admitting evidence that was irrelevant to

defendant's liability and that unduly prejudiced the jury. 

Therefore, the Appellate Division should be reversed and a new

trial ordered.

I.

Plaintiff Janice Mazella commenced the instant action

against defendant William Beals, M.D. and codefendant Elizabeth

Mashinic, M.D., claiming that their substandard medical treatment

of her husband, Joseph Mazella, proximately caused his suicide. 

At trial, defendant Beals admitted he deviated from accepted

medical practice by prescribing decedent the antidepressant drug

Paxil for over a decade while failing to adequately monitor his

condition. However, defendant Beals maintained that he was not

liable for malpractice because superceding acts severed the

causal connection between his conduct and the suicide, including

medical care provided by Dr. Mashinic. For her part, plaintiff

argued that defendant Beals' treatment and conduct towards

decedent was a contributing factor leading to decedent's death. 

A jury found defendant Beals solely liable and he now appeals. 

Defendant began treating decedent in October 1993, when

he diagnosed him with major depression, obsessive-compulsive

disorder and generalized anxiety disorder. Defendant prescribed

20 mg. of Paxil and eventually discontinued decedent's antianxiety Klonopin medication, previously prescribed to decedent by

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his family physician. In April 1994, defendant tapered off

decedent's Paxil dosage and instructed decedent to discontinue it

the following month, and to call him if there were any problems.

Decedent next contacted defendant on April 7, 1998,

following an episode of depression. Defendant concurred with the

recommendation of decedent's family physician that decedent

should be placed on the anti-anxiety drug Ativan and 40 mg. of

Paxil. Within a few weeks decedent showed improvement and

defendant reduced the Ativan dosage, eventually discontinuing it

within the month. Defendant also reduced decedent's Paxil dosage

to 20 mg.

For more than ten years, defendant refilled the

prescriptions for Paxil by telephone or fascimile, without seeing

or examining decedent. Then on August 9, 2009, decedent called

defendant complaining about anxiety, an increase in obsessive

thoughts, and difficulty sleeping. Defendant, who was away on

vacation at the time, was unable to see decedent but instructed

him to double the Paxil dosage to 40 mg. He also prescribed the

anti-psychotic medication Zyprexa, for decedent's anxiety and

sleep problems. The following day, on August 10th, decedent and

plaintiff called defendant. They told defendant that decedent

was pale, nauseous, lightheaded, and did not feel well. 

Defendant instructed decedent to double the Zyprexa and that he

would call him the next day in the late afternoon.

On August 11th, plaintiff observed decedent's condition

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worsen and she took him to the emergency room. After decedent

was cleared medically he was transferred to the hospital's

Community Psychiatric Emergency Program (CPEP) for overnight

observation. According to the hospital records admitted into

evidence, decedent complained of suicidal ideations, difficulty

sleeping and controlling his thoughts, and feeling as if his body

was on fire inside. That night he was taken off Zyprexa and

given Ativan. Upon his discharge the following day, decedent was

told to discontinue Zyprexa, take Klonopin, and reduce his Paxil

dosage to 30 mg.

For the next five days decedent appeared stable. On

August 17th, plaintiff and decedent visited defendant, now

returned from vacation. This would be the last time defendant

had contact with decedent before the suicide. 

Both parties presented differing accounts of decedent's

August 17th visit to defendant's office. According to plaintiff,

defendant's conduct had a devastating adverse impact on

decedent's condition. Plaintiff testified that defendant yelled

at them, and that he appeared angry that she had taken her

husband to CPEP because defendant viewed this as decedent trying

to get help from someone else. She also claimed that defendant

degraded decedent, accusing him of not taking more Paxil in the

past "because [decedent] couldn't get an erection." In response

to defendant's comments, decedent pulled his shirt over his head,

even while plaintiff tried to comfort him. According to

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plaintiff, defendant abruptly ended the session by standing up,

waving them off and telling decedent "Just go to CPEP. That's

where you belong." Plaintiff further claimed that defendant

"threw [them] out of his office. He turned his back," and never

said goodbye. When decedent left he was a "crumbling mess," and

went to CPEP because he believed defendant was refusing to take

care of him.

In contrast, defendant testified that during the August

17th visit, decedent was unresponsive and cried, and that when

decedent spoke he was very upset because he felt that his wife

thought he was acting like a baby. It was also the first time

decedent could not assure defendant that he would not act upon

his suicidal thoughts. Defendant advised decedent that the only

option left was inpatient treatment at CPEP. Decedent rejected

this advice because he did not want to be seen in a local

psychiatric facility, and because decedent felt he could not go a

period of time without working. Despite the differences in their

respective accounts of the August 17th visit, defendant

corroborated plaintiff's testimony that decedent pulled his shirt

over his head, adding that decedent had been sobbing, and that he

had never seen decedent act this way. He also admitted that he

raised his voice, but claimed that he did so to emphasize that he

could not be sure outpatient treatment would be adequate to

address decedent's suicidal thoughts. Defendant testified that

decedent eventually agreed to go to CPEP, and, as far as

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defendant knew, decedent remained his patient. 

There is no dispute as to what happened after decedent

last saw defendant. Decedent went to CPEP later that day and,

while he initially declined inpatient care, after he complained

of being suicidal he was placed on 15-minute safety checks for

the next 27 hours and his access to "lethal means of suicide" was

restricted. The following day, August 18th, he complained of

feeling hopeless and worthless, and repeated that he would kill

himself. His medications were adjusted and he was discharged.

After a difficult and restless night, decedent returned

to CPEP on August 19th. He was administered Ativan, and placed

on 15-minute safety checks for about 12 hours. That evening he

was involuntarily transferred to the psychiatric unit at Auburn

Memorial Hospital (Auburn).

On August 20th, decedent met with Dr. Mashinic. She

adjusted his medication and placed him on a multi-drug regimen of

increased Paxil, Klonopin, Zyprexa, Ativan, and another antipsychotic drug. That night, after Dr. Mashinic discontinued the

one-on-one suicide watch, decedent attempted suicide by tying the

belt of his hospital gown around his neck. Dr. Mashinic

re-instated the suicide watch, and again changed decedent's

medications, replacing Paxil with another anti-depressant, and

added Risperdal. Over the course of a week, doctors at Auburn

adjusted decedent's medications as he continued to complain about

anxiety and depression, and increased repulsive thoughts of a

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sexual nature. At times he reported a decrease in depression,

but still complained of difficulty sleeping and relaxing.

Decedent was discharged on August 27th, and referred to

the Brownell Center for out-patient psychiatric care. Brownell

had a three-part screening and intake process, which decedent

commenced on September 3, 2009, when he met with a social worker. 

At this time he complained of suicidal and obsessive sexual

thoughts. During his second intake visit, on September 9th, he

met with a psychotherapist and told her that everything was

overwhelming, that he felt "as if someone had taken his brain

out," and that he had "suicidal thoughts come and go." The

Brownell psychotherapist scheduled an accelerated third intake

appointment for September 11th. However, Brownell was unable to

obtain decedent's previous medical records in time for this

appointment. As a consequence, on September 11th decedent met

instead with an independent licensed social worker and

psychotherapist recommended by a family member. Decedent told

the psychotherapist that he had suicidal thoughts, but could not

act on them because of his daughters. The psychotherapist

concluded decedent was not at risk of committing suicide and made

plans to check up on him the next day.

As it turned out, decedent did not have any further

contact with any medical professionals. Early on September 12,

2009, decedent went to his garage and committed suicide by

stabbing himself with a knife. Shortly after, plaintiff found

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him there, face down in a pool of blood. 

II.

In June 2010, plaintiff, as administrator of decedent's

estate, commenced this medical malpractice and wrongful death

action against defendant and Dr. Mashinic. She alleged that

defendant's treatment of decedent was negligent, as demonstrated,

in part, by his failure to properly prescribe and monitor

decedent's medication, and adequately diagnose decedent's

worsening condition during the August 17, 2009 office visit. She

further claimed defendant's negligence was a direct and proximate

cause of his suicide. With respect to Dr. Mashinic, plaintiff

alleged that her treatment at Auburn was negligent, and that her

conduct was also a direct and proximate cause of decedent's

suicide.

Prior to trial, defendant filed a motion in limine to

preclude, among other things, the admittance of a consent

agreement between defendant and the Office of Professional

Medical Conduct (OPMC).1 The OPMC is part of the New York State

Board for Professional Medical Conduct and is responsible for

investigating complaints against physicians, coordinating

disciplinary hearings and enacting sanctions as required. In

1 Defendant signed two consent agreements. Only the one

dated February 14, 2012, by which defendant agreed not to contest

certain negligence charges, was admitted at trial and, therefore,

relevant to this appeal.

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January 2012, OPMC brought misconduct charges against defendant,

alleging that he "deviated from accepted standards of medical

care" by prescribing medications to 13 patients over several

years without adequately monitoring and evaluating them, and

often without any face-to-face visits. Decedent was one of the

listed patients. By Consent Agreement and Order dated and

finalized in February 2012 (Consent Order), defendant agreed not

to contest charges of negligence based on allegations involving

his treatment for 12 of the 13 patients, specifically excluding

decedent.2

Defendant argued, in part, that the Consent Order was

not probative evidence of his negligence with respect to

decedent, and was unduly prejudicial because none of the

uncontested charges involved decedent or addressed the proper

treatment for a patient with a long history of depression,

anxiety and OCD. Defendant contended that introduction of the

Consent Order would serve only to unfavorably "sway" the jury. 

The court denied the motion and determined that the Consent Order

"would be admissible in full with regard to the issues

surrounding not only the [decedent's] case, but also [the other

patients], based on testimony of habit and credibility." Prior

to trial, defendant conceded that prescribing Paxil to decedent

2 In accordance with the Consent Order, defendant agreed to

a term of probation, which included review by OPMC of defendant's

performance and a requirement that he only practice medicine when

monitored by another physician.

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over the course of more than ten years without any face-to-face

contact was a deviation from acceptable medical practice. On the

day trial was scheduled to begin, defendant renewed his motion to

preclude the Consent Order, arguing that, in light of his

concession, it was no longer probative of any disputed issue. 

The court again denied the motion. 

The Consent Order was later admitted into evidence

during defendant's testimony. When plaintiff called defendant as

a witness, he testified that he failed to appropriately monitor

decedent from 2000-2009 while decedent was on Paxil, but denied

that this constituted malpractice. Over defense counsel's

objection, the court admitted the Consent Order and allowed

plaintiff to question defendant about its contents. During that

questioning defendant was repeatedly confronted with the fact

that OPMC had charged him with "gross negligence" with regard to

13 patients, including decedent, and that defendant signed the

Consent Order in satisfaction of the charges, receiving a

reprimand and censure as punishment for his misconduct.

Defendant also sought to preclude admission of a

photograph of decedent taken after his suicide, arguing that it

lacked probative value because there was no dispute as to the

manner of decedent's death. The court allowed the photograph

into evidence "not only on the issue of how [decedent] went about

what he did, but also the pain and suffering issues and the other

related issues."

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At trial, each party submitted expert testimony to

persuade the jury of their own respective theory of negligence

and causation. Plaintiff relied on Dr. Peter Breggin, a licensed

physician in New York with a specialty in psychiatry. Dr.

Breggin concluded that defendant deviated from accepted medical

standards by failing to monitor decedent for years while

prescribing Paxil, and by later abandoning him as a patient, and

that defendant's conduct was a significant contributing factor to

decedent's suicide. He explained that following more than 10

years of unmonitored Paxil dosing, defendant worsened decedent's

condition by doubling his Paxil prescription and adding Zyprexa

after decedent telephoned him on August 9th. He described this

as "a turning point" with catastrophic results for decedent. 

According to Dr. Breggin, doubling decedent's Paxil was hazardous

because it greatly increased the impact of a very potent drug,

and notably is not recommended by the Federal Food and Drug

Administration.

Dr. Breggin also testified to the impact on decedent's

already vulnerable condition when he finally had a face-to-face

visit with defendant on August 17, 2009. He explained that when

a patient visits a psychiatrist they are feeling hurt and

self-conscious. According to Dr. Breggin a person who is very

distressed, having a great deal of emotional difficulty, is

particularly sensitive to humiliation -- to being rejected,

abandoned and invalidated. A doctor cannot turn a patient away,

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but instead has to ensure there is adequate followup. Dr.

Breggin concluded that after August 17th, decedent never again

established a secure relationship with a physician and had

"really been cast at sea by" defendant. He also testified, as

established by the photograph and the autopsy report, that

decedent's suicide was "very violent and bloody," and that such

suicides are often associated with the use of antidepressants.3

Therefore, in Dr. Breggin's opinion, defendant's actions on

August 17th, after years of failing to monitor decedent's

prescription medication and doubling the Paxil dosage over the

telephone without an in-person assessment of decedent, were a

significant contributing factor to decedent's suicide.

For his part, defendant presented testimony from Dr.

Benson Zoghlin, a family physician, who explained that

defendant's 10 years of prescribing Paxil without seeing decedent

did not contribute to the suicide because decedent was doing well

during that period. According to Dr. Zoghlin, decedent only

appeared to decompensate when he was hospitalized and his

medication was substantially readjusted. In his opinion,

decedent's major depressive disorder caused his death, rather

then any action taken by defendant.

Dr. Thomas Schwartz, a licensed doctor board certified

3 In addition, Dr. Breggin testified that it was Dr.

Mashinic's responsibility to ensure that decedent had a

psychiatrist when he was discharged from Auburn, and that her

conduct also served as a contributing factor to the suicide.

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in psychiatry, also testified on behalf of defendant. He

explained that individuals, like decedent, who are suffering from

a major depressive disorder and obsessive-compulsive disorder at

the same time pose a high risk of suicide. He also opined that

the benefits of the different medications that defendant

prescribed to decedent outweighed any risks. 

The jury returned a verdict for plaintiff, finding both

defendant and Dr. Mashinic negligent, but that only defendant's

negligence proximately caused decedent's suicide. The jury

awarded $1,200,000 in damages and apportioned $800,000 to

plaintiff and $400,000 to be divided among decedent's three

surviving daughters. The court denied defendant's motion to set

aside the verdict, and entered an amended judgment for plaintiff

in accordance with the money damages awarded by the jury.4

The Appellate Division affirmed, with one justice

dissenting (122 AD3d 1358 [4th Dept 2014]). We granted defendant

leave to appeal (25 NY3d 901 [2015]), and now reverse.

III.

Defendant asserts several grounds for reversal.5

4 Supreme Court entered an amended judgment to correct a

typographical error in the original judgment. 

5 The Appellate Division rejected defendant's claim that the

verdict was against the weight of the evidence and we are without

authority to consider this additional ground on appeal (see Heary

Bros. Lightning Protection Co., Inc. v Intertek Testing, 4 NY3d

615, 618 [2005]; Karger, Powers of the New York Court of Appeals

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First, he claims the verdict is legally insufficient because

plaintiff failed to establish defendant was the proximate cause

of the suicide. Second, defendant argues that he was denied a

fair trial by the trial court's admission into evidence of the

Consent Order and the photograph of decedent's body. Third,

defendant argues that the trial court abused its discretion when

it denied his request for a special verdict sheet on liability

and damages. We conclude that although the evidence was

sufficient to support the verdict, the trial court committed

reversible error when it admitted the Consent Order and permitted

defendant to be questioned regarding its contents.

A. Legal Sufficiency of the Evidence

To succeed on his legal insufficiency claim, defendant

must establish "there is no valid line of reasoning or

permissible inferences which could possibly lead rational

[persons] to the conclusion reached by the jury on the basis of

the evidence presented at trial" (Cohen v Hallmark Cards, Inc.,

45 NY2d 493, 499 [1978]). This is a "basic assessment of the

jury verdict" and prohibits a holding of insufficiency "in any

case in which it can be said that the evidence is such that it

would not be utterly irrational for a jury to reach the result it

has determined upon" (id.).

In a medical malpractice action, the plaintiff must

§ 13:2, at 454). 

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show that the defendant "deviated from accepted medical practice,

and that such deviation was a proximate cause of the plaintiff's

injury" (James v Wormuth, 21 NY3d 540, 545 [2013]). Defendant

conceded that he deviated from accepted medical standards by

failing to properly monitor decedent, and on appeal he argues

only that the evidence does not support a jury determination that

his negligence was a proximate cause of the suicide.6

A defendant's negligence qualifies as a proximate cause

where it is "a substantial cause of the events which produced the

injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315

[1980]). However, "[w]here the acts of a third person intervene

between the defendant's conduct and the plaintiff's injury, the

causal connection is not automatically severed" (id.). As this

Court has explained, "liability turns upon whether the

intervening act is a normal or foreseeable consequence of the

situation created by the defendant's negligence" (id., citing

Parvi v City of Kingston, 41 NY2d 553, 560 [1977]). Only where

"the intervening act is extraordinary under the circumstances,

not foreseeable in the normal course of events, or independent of

or far removed from the defendant's conduct," may it possibly

6 Even without defendant's concession of negligence on

appeal, plaintiff presented ample evidence of such negligence at

trial. Namely, plaintiff's expert testified that defendant

deviated from accepted medical standards by prescribing Paxil for

10 years and adding Zyprexa without properly monitoring or seeing

decedent, and by providing ineffective care during the August

17th meeting, leaving decedent feeling humiliated and abandoned. 

 

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"break[] the causal nexus" (id.). The mere fact that other

persons share some responsibility for plaintiff's harm, does not

absolve defendant from liability because "there may be more than

one proximate cause of an injury" (Argentina v Emery World Wide

Delivery Corp., 93 NY2d 554, 560 n2 [1999]; see also NY Pattern

Jury Instr.--Civil 2:71). 

Defendant contends that decedent's hospitalization at

Auburn and treatment by other medical professionals after

defendant last saw him on August 17, 2009, were intervening and

superseding events that broke any casual connection between

defendant's conduct and decedent's suicide. He further argues

that the suicide is too far removed from defendant's treatment of

decedent to be considered proximate. We hold his claims to be

without merit.

Although several events transpired after his last

meeting with decedent on August 17th, there was sufficient trial

evidence for the jury to conclude that, regardless of these

events, defendant proximately caused decedent's suicide. 

Defendant admitted to negligently treating decedent for over a

decade, which was further corroborated by evidence of the

specific manner in which he prescribed Paxil for over 10 years

without properly monitoring or meeting with decedent. There was

also trial evidence supporting plaintiff's argument that the

violent nature of the suicide indicated it was connected to

decedent's prescription drug use. Furthermore, the jury could

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have credited plaintiff's version of the August 17th office visit

and concluded that defendant's conduct worsened decedent's

condition, leading to his suicide. 

Significantly, plaintiff's expert provided testimony to

assist the jury in connecting defendant's negligence with

decedent's suicide, lending further record support for the

verdict. Dr. Breggin testified that, in his considered expert

opinion, what led to decedent's suicide was a multistage process.

"I think it begins with ten years unmonitored

on Paxil, so that he's inevitably going to

have a horrific withdrawal reaction when he's

abruptly stopped. In other words, even

though it's covered over with other drugs,

the brain just can't bounce back after ten

years . . . . The lack of monitoring, very

likely, contributed. By his not having

anyone that he had a relationship with to go

to, by his not having someone to observe

whether he was in some way, getting worse on

the drug because the family isn't going to

necessarily notice, and it happens over time

. . . . Then the August 9th, 2009

prescription of Zyprexa and 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 . . . .

But now we have this new complication that

he's doubling the dose, which is, the FDA

recommends, no more than 10 milligrams at a

time. He's given 20 additional milligrams. 

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." 

He described how defendant's actions on August 17th tragically

impacted decedent at a moment when he was most vulnerable.

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"It's the start of the big decline and I

think that's very important. I think his

visit later in August with the patient . . .

where the patient feels humiliated,

invalidated, rejected, abandoned, remarkable

words to find in a medical record, rejection,

abandonment and invalidated, marked and

unseen in a medical record and by a doctor. 

That was 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."

It was then for the jury to decide the persuasiveness of this

testimony, and to consider it along with the opinions of

defendant's opposing experts (see People v Drake, 7 NY3d 28, 33

[2006] ["jurors remain always free to accept or reject expert

evidence"]; People v Negron, 91 NY2d 788, 792 [1998] ["a jury is

entitled to assess the credibility of witnesses and determine,

for itself, what portion of their testimony to accept and the

weight such testimony should be given"). 

To the extent defendant claims there is legally

insufficient evidence of a causal nexus because the third party

acts were unforeseeable, we disagree. There is no superceding

event if "the intervening act is a normal or foreseeable

consequence of the situation created by the defendant's

negligence" (Derdiarian, 51 NY2d at 315). Defendant concedes

that when he last saw decedent alive on August 17th, decedent's

conduct was unusual. Decedent was anxious and very upset and,

for the first time, he was unable to assure defendant that he

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could control his suicidal thoughts. According to plaintiff,

defendant threw decedent out of his office when he was

desperately in need of help, leaving decedent a "crumbling mess." 

The jury could have fully credited plaintiff's version of these

events and Dr. Breggin's opinion about decedent's condition when

he left defendant's office. Thus, the jury could have concluded

that it was foreseeable that decedent would seek treatment by

others and that the treatment could potentially be lacking. 

Under these circumstances, we cannot say that the intervening

acts are "of such an extraordinary nature or so attenuate[]

defendant's negligence from the ultimate injury that

responsibility for the injury may not be reasonably attributed to

the defendant" (Kush by Marszalek v City of Buffalo, 59 NY2d 26,

33 [1983]). 

This case required the jury to consider decedent's

mental health treatment and the delicate and complex functioning

of the brain and human emotion under prescription drug use. The

jury was presented with evidence of the long-term impact of

defendant's negligence on decedent's condition, as well as

evidence that subsequent medical treatment could be a foreseeable

consequence of defendant's actions. Since a valid line of

reasoning and permissible inferences could lead rational persons

to find defendant liable for medical malpractice based on this

evidence, we conclude defendant's legal insufficiency claim is

without merit (see Cohen, 45 NY2d at 499). 

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B. Evidentiary rulings

Defendant also claims that, even if there was evidence

sufficient to support the verdict, certain evidentiary rulings by

the trial court denied him a fair trial. He argues that the

court erroneously admitted evidence of the photograph of

decedent's body and the Consent Order. Although the court did

not abuse its discretion in admitting the photograph, we agree

with defendant that admission of the Consent Order was an abuse

of discretion warranting reversal and a new trial.

Since "[t]rial courts are accorded wide discretion in

making evidentiary rulings . . . absent an abuse of discretion,

those rulings should not be disturbed on appeal" (People v

Carroll, 95 NY2d 375, 385 [2000]). To be admissible, evidence

must be relevant and its probative value outweigh the risk of any

undue prejudice (People v Morris, 21 NY3d 588, 595 [2013]). 

Defendant's claim that the photograph should have been

precluded because it lacked probative value and served only to

arouse the jury's emotions is without merit. The photograph

depicted the manner in which decedent committed suicide and was

relevant to plaintiff's theory that the violent nature of the

suicide -- death by self-inflicted knife wounds -- was a result

of decedent's extreme mental and emotional condition, induced by

the long-term use of prescription drugs. Nor was its admission

unduly prejudicial since there was already testimony from a

paramedic describing the condition in which he found the body,

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and the official autopsy report from the Medical Examiner's

Office was admitted into evidence without objection. Therefore,

the court did not abuse its discretion in admitting the

photograph.

 The trial court's admission of the Consent Order into

evidence is a wholly different matter. Generally, "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's Estate, 55 NY2d 206,

210-211 [1982], citing Richardson, Evidence [10th ed], §§ 170,

184; see also Coopersmith v Gold, 89 NY2d 957, 959 [1997]). 

Contrary to plaintiff's argument, none of the exceptions to this

rule -- motive, intent, the absence of mistake or accident, a

common scheme or plan, or identity -- apply in this case (see

Matter of Brandon, 55 NY2d at 211). Moreover, even though the

Consent Order was a public document, and under Public Health Law

§ 10 (2) possibly admissible as "presumptive evidence of the

facts stated therein if otherwise properly rendered admissible

evidence," under these facts it should not have been admitted. 

The record establishes that the Consent Order was

neither probative of defendant's negligence or the question of

proximate cause. As part of the Consent Order defendant agreed

not to contest negligent treatment of certain anonymous patients,

none of whom was the decedent. As such, defendant preserved his

objections to factual allegations related to decedent and any

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charges of misconduct based on those allegations. Since the

Consent Order did not establish facts concerning defendant's

treatment of decedent, it was not probative as to that issue. In

any event, given defendant's pre-trial concession that he

deviated from accepted medical practice, the issue of negligent

treatment did not require resolution by the jury. 

Further, any possible relevance of the Consent Order's

contents was outweighed by the obvious undue prejudice of his

repeated violations of accepted medical standards (see Maraziti v

Weber, 185 Misc 2d 624, 626 [Sup Ct Dutchess County 2000] [court

denied admittance of an OPMC report detailing previous instances

of defendant's negligence since such evidence was "of marginal

relevance at best, but would be likely to unduly prejudice the

jury"]). The Consent Order was nothing more than evidence of

unrelated bad acts, the type of propensity evidence that lacks

probative value concerning any material factual issue, and has

the potential to induce the jury to decide the case based on

evidence of defendant's character (see People v Arafet, 13 NY3d

460, 464-465 [2009] ["Evidence of uncharged crimes is

inadmissible where its only purpose is to show bad character or

propensity towards crime"]; Hosmer v Distler, 150 AD2d 974, 975

[3d Dept 1989] [trial court properly excluded defendant's prior

convictions for driving while intoxicated and that he had a habit

of excessive drinking as unfairly prejudicial propensity

evidence]). 

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Plaintiff's additional argument that the Consent Order

was admissible to impeach defendant as an admission and as a

prior inconsistent statement is also without merit. Plaintiff

claims she was entitled to present this evidence to the jury once

defendant testified that although he was negligent in prescribing

Paxil for 10 years without monitoring decedent, his conduct was

not malpractice. As a preliminary matter, defendant's testimony

was not inconsistent because the Consent Order did not include

any assertions or concessions regarding defendant's treatment of

decedent. In addition, since medical malpractice requires a

finding of causation (James, 21 NY3d at 545), defendant could

concede negligent treatment and still maintain his conduct did

not constitute malpractice as a legal matter.

We are also unpersuaded by plaintiff's claim that the

evidence was admissible to impeach defendant's credibility.

Collateral matters relevant only to credibility are properly

excluded because they distract the jury from the central issues

in the case, and bear the risk of prejudicing the jury based on

character and reputation (see Badr v Hogan, 75 NY2d 629, 635

[1990]; People v Schwartzman, 24 NY2d 241, 245 [1969]; see also

Richardson, Evidence [11th ed], § 4-410). It is an abuse of a

trial court's discretion to admit evidence of bad acts when such

evidence lacks any probative value, or bears only marginal

relevance, outweighed by its prejudicial effect (see Badr, 75

NY2d at 635; Richardson, Evidence [11th ed], §§ 4-410, 4-501). 

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Here, given defendant's concession at trial that he deviated from

accepted medical practices, the Consent Order was unquestionably

collateral, without probative value, and, regardless, improperly

prejudicial. 

On the facts of this case, there were no permissible

grounds to allow the Consent Order into evidence. Morever,

notwithstanding that under CPLR 2002 "[a]n error in a ruling of

the court shall be disregarded if a substantial right of a party

is not prejudiced," here, admission of the Consent Order tainted

the deliberative process, and sufficiently prejudiced defendant,

such that we cannot disregard this error. Given the multiple

allegations of defendant's negligent monitoring of prescription

drug treatment, and the numerous patients referenced in the

Consent Order, we cannot say that the verdict was not influenced

by this powerful evidence of defendant's professional misconduct. 

Indeed, it is difficult to imagine how a jury could simply ignore

that defendant negligently treated 12 other patients for years in

a similar manner as decedent, namely failing to monitor them, and

that this conduct resulted in OPMC charges leading to its

oversight of his medical practice.

This point was not lost on plaintiff, who repeatedly

referred to defendant's acts of negligence and, during summation,

explicitly relied on the Consent Order to link prior allegations

of defendant's negligence with plaintiff's current claims. In

light of the prejudicial nature of the Consent Order and its

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repeated use at trial we cannot say that its admission did not

have a substantial impact on the verdict.

Here the evidence portrayed defendant as a serial pill

pusher, oblivious to the health and safety of those in his care,

and a danger to patients. Since the evidence could have induced

the jury to punish him for his unrelated misdeeds, admission into

evidence of the Consent Order was sufficiently prejudicial to

defendant so as to require a new trial (see Badr, 75 NY2d at 637

[cross-examination of a witness with prior bad acts was

"sufficiently prejudicial" to require a new trial]; compare with

Geary v Church of St. Thomas Acquinas, 98 AD3d 646, 647 [2d Dept

2012], lv denied 20 NY3d 860 [2013] [no new trial required when

the court improperly precluded evidence since "there is no

indication that the evidence would have had a substantial

influence on the result of the trial"]).

C. The General Verdict Sheet

Given our determination that defendant is entitled to a

new trial, we briefly address his claims that use of a general

verdict sheet was improper. Defendant argued that the court

should have provided the jury with a special verdict sheet with

individual interrogatories because plaintiff relied on three

different theories of liability. However, there was a single

theory of liability presented to the jury based on the

defendant's continuum of negligent treatment. 

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Although defendant did not propose to the trial court

the specific type of special verdict he now advocates, such a

special verdict sheet itemizing the subcategories of damages may

assist a court's review of the jury's monitory award (CPLR 4111

[d]; see Killon v Parrotta, 125 AD3d 1220, 1223 [3d Dept 2015]). 

On retrial, defendant should be afforded the opportunity to argue

in support of a special verdict sheet on damages. 

Accordingly, the order should be reversed, with costs,

and a new trial ordered.

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and a new trial ordered. Opinion by

Judge Rivera. Chief Judge DiFiore and Judges Pigott,

Abdus-Salaam, Stein and Garcia concur. Judge Fahey took no part.

Decided June 30, 2016

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