State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 520409 

________________________________

RODNEY VALLONE,

Appellant,

v MEMORANDUM AND ORDER

SARATOGA HOSPITAL,

Respondent.

________________________________

Calendar Date: April 22, 2016

Before: Garry, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

__________

The Mills Law Firm, LLP, Clifton Park (Michelle M. Chester

of counsel), for appellant.

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Molly

C. Casey of counsel), for respondent.

__________

Garry, J.P.

Appeal from an order of the Supreme Court (Crowell, J.),

entered October 17, 2014 in Saratoga County, which denied

plaintiff's motion to set aside that part of a verdict in favor

of defendant.

On June 3, 2007, plaintiff sought treatment in the

emergency room at defendant's facility, complaining of a history

of recurrent seizures. After he was placed on an examination

table, his father brought him a cup of coffee. Plaintiff

experienced another seizure and the hot coffee spilled into his

lap, burning him. Later that day, plaintiff was admitted. Three

days later, he was examined by a physician and diagnosed as

suffering from second degree burns, and a plastic surgery

consultation was requested. Upon examining plaintiff the
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following day, the plastic surgeon diagnosed his injuries as

second and third degree burns. Plaintiff was discharged the next

day, with instructions to seek further treatment from a physician

within one week and from a plastic surgeon within two weeks. 

Upon learning that plaintiff had been discharged, the plastic

surgeon who had examined him directed his staff to contact

plaintiff to arrange an office visit so that plaintiff could be

seen more promptly; this visit occurred several days following

his discharge. The plastic surgeon recommended a referral to a

burn center, and plaintiff subsequently underwent debridement and

skin grafting surgery. As a result of his burn injuries,

plaintiff allegedly suffered permanent scarring, lost function,

and continuing pain. 

Plaintiff commenced this action alleging negligence and

medical malpractice. At trial, plaintiff contended that, in

light of plaintiff's history of frequent seizures, defendant was

negligent in permitting him to have coffee in the emergency room.

Plaintiff further contended that defendant's employees

exacerbated plaintiff's injuries and failed to comply with

accepted standards of care by, among other things, failing to

remove his clothes and cool his skin immediately after the coffee

spill, and by discharging him prematurely. The jury returned a

verdict finding that defendant was not negligent for allowing

plaintiff to have coffee in the emergency room, but that

defendant deviated from accepted standards of care in treating

plaintiff's burns, and that this was a substantial factor in

causing harm to plaintiff. The jury further found that defendant

deviated from accepted standards of care in discharging plaintiff

prematurely, but that this was not a substantial factor in

causing harm to him. Finally, the jury found that plaintiff was

comparatively negligent in causing the coffee spill, and that his

percentage of fault was 90%, while defendant's was 10%. The jury

rendered an award of damages in the sum of $25,000 to plaintiff

for pain, suffering, and loss of enjoyment of life, to the date

of the verdict, with no award for future damages. Plaintiff

moved pursuant to CPLR 4404 (a) to set aside the verdict, and

Supreme Court denied the motion. Plaintiff appeals from that

order.

Plaintiff contends that Supreme Court erred in denying his
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motion to set aside the verdict because the jury's findings that

his premature discharge was not a substantial factor in causing

him harm, and that he was comparatively negligent, were against

the weight of the evidence and contrary to law. As to the

premature discharge, we find no error in Supreme Court's

determination. The jury's finding may be set aside as

"inconsistent [with its determination that the discharge was

improper] and against the weight of the evidence only [if] the

issues are so inextricably interwoven as to make it logically

impossible to find negligence without also finding proximate

cause" (Adami v Wallace, 68 AD3d 1397, 1398 [2009] [internal

quotation marks and citations omitted]; see Calderon v Irani, 296

AD2d 778, 778 [2002]). Here, the issues of fault and causation

are not so inseparably related. 

The jury's determination that plaintiff was prematurely

discharged was supported, among other things, by the testimony of

an expert in emergency medicine, who stated that plaintiff was

improperly discharged without an appropriate assessment and

treatment plan, and that defendant should have transferred him to

a burn center. The expert opined that plaintiff's pain would

have been handled more effectively at a burn center and that its

duration and severity were prolonged by the premature discharge. 

However, there was ample other evidence from which the jury could

reasonably have found that the severity of plaintiff's pain was

caused by the initial injury rather than the premature discharge,

and that his pain was not increased by the timing of his

admission to the burn center a week after his discharge. A

plastic surgeon testified as an expert on defendant's behalf that

an earlier transfer to a burn center would not have affected

plaintiff's ultimate outcome. Although there was testimony that

plaintiff was in pain during the period that he was at home

following his discharge, there was no evidence that his pain

diminished following his arrival at the burn center, or that his

treatment there was less painful than the previous treatments. 

Plaintiff testified that he continued to experience pain after he

was admitted to the burn center, throughout his treatment there,

and following his release. Although plaintiff's treating plastic

surgeon testified that the risk of infection is generally

increased when a burn patient's admission to a burn center is

delayed, there was no evidence that plaintiff suffered such an
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infection. Additionally, there was some evidence that the timing

of plaintiff's admission to the burn center after his plastic

surgeon's referral was affected, in part, by his own hesitation;

he was initially unsure that he wished to go to the burn center,

and did not immediately take the necessary actions to bring about

his admission following the referral. Thus, granting defendant

the benefit of every favorable inference that can reasonably be

drawn from the trial evidence, as we must (see Pyptiuk v Kramer,

295 AD2d 768, 770 [2002]), we cannot say that "the evidence so

preponderated in favor of the plaintiff that the verdict could

not have been reached on any fair interpretation of the evidence"

(Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal

quotation marks, brackets and citation omitted]; see Ernst v

Khuri, 88 AD3d 1137, 1138 [2011]).

We reach a different conclusion as to the issue of

plaintiff's comparative negligence. The jury was instructed

that, if it determined that defendant was negligent in causing

plaintiff's injuries, then it must also determine whether any

negligence on plaintiff's part contributed to causing the coffee

spill. Plaintiff contends that this instruction was erroneous,

as plaintiff's responsibility, if any, for causing the coffee

spill is irrelevant to defendant's liability for its inadequate

treatment of his burns after the spill occurred. A comparative

negligence instruction is appropriate when there is evidence that

a plaintiff may share responsibility for harm that was inflicted

as a result of a defendant's medical malpractice (see Elkins v

Ferencz, 263 AD2d 372, 372-373 [1999]; see also DeCesare v

Kaminski, 29 AD3d 379, 382 [2006], lv dismissed 7 NY3d 844

[2006]; Ogle v State of New York, 191 AD2d 878, 881 [1993]). 

However, no comparative negligence instruction should be given

when a plaintiff's alleged negligence preceded the alleged

medical malpractice and is not otherwise alleged to have

contributed to the harm resulting from the malpractice. A

plaintiff's prior conduct "is not relevant, since the defendant's

liability extends only to that portion of [the plaintiff's]

injuries attributable to the defendant's malpractice" (DiMarco v

New York City Health & Hosps. Corp., 247 AD2d 574, 576 [1998], lv

denied 93 NY2d 807 [1999]; see Mendoza v Kaplowitz, 215 AD2d 735,

735-736 [1995]). Here, although there was evidence from which

the jury could have found that plaintiff shared responsibility
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for the initial coffee spill, defendant made no claim at trial

that plaintiff had any such shared responsibility for defendant's

subsequent deviations from the accepted standard of care in

treating plaintiff's injuries, nor was there any evidence adduced

at trial from which the jury could have found that plaintiff

shared such responsibility.1 Accordingly, plaintiff contends

that Supreme Court should have instructed the jury to consider

plaintiff's comparative negligence only if it found that

defendant was negligent in allowing him to have hot coffee in the

emergency room, and to exclude any consideration of comparative

negligence from its findings on defendant's subsequent

malpractice. 

At trial, plaintiff made a general objection to the

comparative negligence instruction on the ground that there was

no evidentiary basis for the charge, but neither requested that

the jury be charged to exclude comparative negligence from its

consideration of the malpractice claims nor objected to the

proposed special verdict sheet. Thus, plaintiff failed to

preserve this challenge to the instruction (see CPLR 4017, 

4110-b; De Long v County of Erie, 60 NY2d 296, 306 [1983];

Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d 975, 975-

976 [2005]). However, this Court may exercise its discretion to

order a new trial when an unpreserved error in a jury charge is

fundamental – that is, "so significant that the jury was

prevented from fairly considering the issues at trial" (Pyptiuk v

Kramer, 295 AD2d at 771 [internal quotation marks and citation

omitted]; accord Ciarelli v Lynch, 22 AD3d 987, 989 [2005];

Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d at 976-

977; see Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). 

Here, the jury was neither instructed to limit its consideration

of plaintiff's comparative negligence, nor that defendant's

liability extended only to that portion of plaintiff's injuries

attributable to its malpractice. The jury was thus prevented

from fairly considering the central issue of damages. The errors

were further compounded by the failure to instruct the jury "to

1 For this reason, we agree with plaintiff's additional

contention that the jury's comparative negligence determination

was against the weight of the evidence.
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determine the total amount of damages sustained by plaintiff,

undiminished by any percentage of fault" (Grant v Endy, 167 AD2d

807, 808 [1990]; see PJI 2:36.2). PJI 2:36 sets forth three

essential steps to be followed by the jury in apportioning

liability and calculating damages, and the third step – which

instructs the jury to determine the total damage award without

reference to any percentage of fault – is essential to avoid

juror confusion and the risk of a double reduction of the

plaintiff's recovery (see Scaduto v Suarez, 150 AD2d 545, 547-548

[1989]; Luppino v Busher, 119 AD2d 554, 556 [1986]; 1A NY PJI3d

2:36, Comment, Mode of Trial [Bifurcated or Full] [Note: online

treatise]). Here, it is impossible to determine whether the jury

intended the amount that it awarded to represent the total damage

award or plaintiff's 10% share following the erroneous

apportionment of fault. Accordingly, we find that the combined

errors in the charge are fundamental, and that a new trial on the

issue of plaintiff's damages is warranted in the interest of

justice (see Krigsfeld v Feldman, 115 AD3d 712, 712-713 [2014];

Ciarelli v Lynch, 22 AD3d at 989-990; Decker v Rassaert, 131 AD2d

626, 627 [1987]; DiGrazia v Castronova, 48 AD2d 249, 251-252

[1975]).

Lynch and Mulvey, JJ., concur.

Egan Jr., J. (concurring).

This was a somewhat unusual case in the sense that

plaintiff asserted causes of action sounding in both ordinary and

professional negligence against defendant. We agree with the

majority that because of errors in the jury charge and the

construction of the verdict sheet, which caused the jury to

consider the concept of plaintiff's comparative negligence in an

overall way (rather than limited solely to the cause of action

relating to the ordinary negligence claim), a new trial as to

damages is required.

We write separately for two reasons. First, contrary to

the majority's finding, we believe that plaintiff made a

sufficiently specific objection to the comparative negligence

instruction to preserve that issue for our review. Hence,
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invoking this Court's interest of justice jurisdiction is, to our

analysis, unnecessary. Second, and in an effort to provide some

guidance to the trial court upon remittal as to the scope of the

damages trial, we believe that some discussion as to the

parameters of plaintiff's damages claim is warranted.

As evidenced by the verdict sheet, plaintiff put forth

three theories of liability – namely, that defendant was

negligent in permitting plaintiff to have hot coffee while he was

in defendant's emergency department awaiting treatment for his

seizure, that defendant committed medical malpractice in its

treatment of plaintiff's resulting burns during the course of his

hospitalization and that defendant committed medical malpractice

by discharging plaintiff prematurely. Upon considering these

respective theories of liability, the jury ultimately found in

favor of plaintiff only with respect to defendant's treatment of

plaintiff's injuries – concluding that defendant deviated from

the accepted standards of care in treating plaintiff's burns and,

further, that such deviation was a substantial factor in causing

harm to plaintiff. Notably, the jury expressly found that

defendant was not negligent in allowing plaintiff to have hot

coffee while awaiting treatment in the emergency department and,

further, that defendant's premature discharge of plaintiff was

not a substantial factor in causing the harm suffered by him.

There can be no question that the jury's findings as to

liability have significant implications for the jury that will be

hearing proof as to plaintiff's damages upon remittal. The split

verdict as to liability remains undisturbed by this appeal and

will be the law of the case in the damages trial. In this

regard, the jury at the damages trial must be instructed that

defendant bears no liability for the actual coffee spill and, as

such, plaintiff's damages, if any, cannot include compensation

for the second and third degree burns – or any pain, suffering,

disfigurement, impairment or loss of use resulting therefrom –

suffered by plaintiff in the first instance. Rather, consistent

with the prior findings as to liability, defendant is responsible

only for whatever exacerbation of plaintiff's injuries that may

have occurred due to defendant's deviation from accepted medical

practices during the course of treating such injuries. In other

words, the jury upon remittal must – in assessing plaintiff's
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damages – proceed as if plaintiff had sustained the initial burn

injuries elsewhere and limit the damages attributable to

defendant's malpractice, if any, to only whatever additional

pain, suffering, disfigurement, impairment and/or loss of use

that plaintiff suffered as a result of defendant's treatment of

him during the course of his hospital stay. If the jury hearing

proof as to plaintiff's damages is not so instructed, it may well

– upon viewing the photographs of plaintiff's burns – seek to

compensate him for the entirety of his injuries, including those

occasioned by the initial coffee spill, even though – consistent

with the prior findings as to liability – defendant is

responsible only for whatever exacerbation of those injuries that

may have occurred due to defendant's malpractice in its treatment

of plaintiff.

Clark, J., concurs.

ORDERED that the order is modified, on the facts, without

costs, by reversing so much thereof as denied plaintiff's motion

to set aside the verdict as to damages; motion granted to that

extent and matter remitted to the Supreme Court for a new trial

on the issue of damages only; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court