Inquest on Damages

Consider the following scenario: A defendant doctor in a medical malpractice case has failed to comply with his discovery obligations. As a result, his answer is stricken and the case proceeds to an inquest on the issue of damages. During the inquest, the defendant attempts to introduce evidence that the plaintiff's injuries were not caused by the doctor's negligence, but by another factor, in whole or in part; namely, the plaintiff's pre-existing medical condition. Plaintiff objects, claiming that the issue of causation was determined by the default. How should the court rule? Should the defendant be permitted to present such evidence, or is he deemed to have admitted, by virtue of his stricken answer, that his negligence was the sole cause of plaintiff's injuries?

New York Law

We will look at this scenario through the lens of New York law, and later look at how other states handle the matter. While one New York court has held that a defaulting defendant cannot introduce such evidence, case law in New York and in other states supports a conclusion that there are situations where causation evidence is properly considered at an inquest on damages following a default. Because the issue of damages is so intertwined with the issue of causation in a medical malpractice action, and because such actions are unique in that a defendant doctor can be negligent without being the cause of any injury, the authors submit that a defaulting defendant should be permitted to introduce evidence on the issue of whether the claimed injury resulted from the alleged malpractice, or from another factor or factors, in whole or in part.

Questions Raised

It is well settled in New York that a defaulting defendant admits all traversable, i.e., deniable, allegations in the plaintiff's complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages. McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 351 (1930), rearg and remittitur denied, 253 N.Y. 533 (1930); Rokina Optical Co. v. Camera King, 63 N.Y.2d 728, 730 (1984).

Unless the damages sought are for a “sum certain” (See New York's Civil Practice Law and Rules (CPLR) '3215(a)), a defaulting defendant is entitled to participate in an inquest on the issue of damages, at which time he is entitled to “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages.” Rokina Optical, supra (quoting Reynolds Securities Inc. v. Underwriters Bank and Trust Company, 44 N.Y.2d 568, 572 (1978)). Although New York's highest court, the Court of Appeals, has made clear that a defaulting defendant may not introduce evidence tending to defeat the plaintiff's cause of action, evidence will be allowed involving “circumstances intrinsic to the transactions at issue” in the plaintiff's complaint that, if proven, will be “determinative of the plaintiff's real damages, which cannot be established by the mere fact of the defendant's default.” Id., at 731. Accord Hussein v. Ratcher, 272 A.D.2d 446 (2d Dept. 2000).

Medical Malpractice

Any analysis of what this means in the context of a medical malpractice case ' and what the proper scope of a hearing on damages in such a case should be ' must begin with a discussion of the requisite elements of proof in a New York medical malpractice action. These are: a deviation or departure from accepted practice; and evidence that such departure was a proximate cause of injury or damage. Amsler v. Verrilli, 119 A.D.2d 786 (2d Dept. 1986). The key to liability in such a case is the causal link between the alleged negligence and the claimed injury. A defendant ' even one who is presumed to have been negligent ' is not liable for injury not proximately caused by his breach of duty.

CPLR 3215 does not contemplate that default judgments are to be rubber-stamped. Id. While the plaintiff's burden of proof at an inquest is not stringent, the plaintiff still must allege “enough facts to enable a court to determine that a viable cause of action exists.” Suburban Graphics Supply Corp. v. Nagle, 5 A.D.3d 663, 665 (2d Dept. 2004) (quoting Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71 (2003)). Obviously, in a medical malpractice cause of action, this includes the often-complicated element of proximate cause.

Without proof of causation, there is no nexus between the duty breached by the defendant, i.e., the deviation or departure from accepted practice, and the injury suffered by the plaintiff. Clearly, the defendant in a medical malpractice case can be negligent without being the cause of any injury. This is especially true where there is more than one possible cause for the plaintiff's injuries.

Medicine is replete with examples in which the doctor's negligent act or failure to act was not the proximate cause of the plaintiff's outcome. In the surgical context, many a plaintiff's condition has worsened following a failed surgery, but whether the deterioration was caused by the doctor's actions or instead by the natural progression of plaintiff's disease is the key inquiry to be made before the doctor can be held responsible and ordered to pay damages.

As one court has observed, “[a]lmost every person who receives the services of a physician is sick or disabled when he first goes to the physician. Thus there lurks the ever present possibility that it was the patient's original affliction rather than the physician's negligence which caused the ultimate damage.” Monohan v. Weichert, 82 A.D.2d 102, 107 (4th Dept. 1981) (quoting Louisell and Williams, Medical Malpractice, 8.07, p. 213).

And as the New York Court of Appeals stated long ago, in discussing proximate cause, “[i]t is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages.” McCahill v. New York Transportation Co., 201 N.Y. 221, 224 (1911). Therefore, when there is a question of whether the plaintiff's injury “flowed from” the defendant's deviation or departure, or from ' in whole or in part ' another factor, the fact-finder should not be precluded from addressing this question in its consideration of damages, just because the defendant has admitted (by virtue of his default) that he breached a duty of care owed to the plaintiff.

In a brief, two-paragraph decision, New York's Appellate Division, First Department, an intermediate appellate court, has stated that a defendant whose answer was stricken may not introduce evidence at the damages inquest tending to show that the injuries alleged in the complaint were not caused by defendant's malpractice. Gray v. Jaeger, 49 A.D.3d 287 (1st Dept. 2008). (The authors represented the defendant.) The decision in Gray v. Jaeger contains no discussion of the facts of the case, which involved allegations that the defendant, a dermatologist, negligently prescribed and administered contraindicated medication, causing plaintiff to suffer skin damage (uneven bleaching, destruction of pigmentation and discoloration of her skin).

The defendant sought to introduce evidence at the damages inquest that plaintiff had a pre-existing condition known as vitiligo, and that the loss of pigmentation on certain areas of her body was caused by the natural progression of the vitiligo, rather than by the doctor's presumed negligence. Although the trial court ruled that the defendant would be able to explore the issue of whether the plaintiff's loss of pigmentation resulted from the defendant's malpractice or from the vitiligo, the Appellate Division held that such evidence was not permitted, since the defendant's answer had been stricken. In so doing, the authors submit, the court denied the fact-finder the opportunity to determine the plaintiff's “real” damages.

Other States Tackle the Question

The highest courts of other states have concluded that causation ' particularly where there is more than one potential cause for the plaintiff's injuries ' is clearly a relevant inquiry in assessing damages at an inquest. The Supreme Court of Wyoming stated that “[t]here are some situations where the damages issue is so intertwined with the fault issue that, despite a default, the defendant must be allowed to defend on the question of fault.” Schaub v. Wilson, 1998 Wyo. LEXIS 186, 969 P.2d 552, 556 (Wyo. 1998). In Schaub v. Wilson, the plaintiff alleged that as a result of the defendant's negligent driving (in rear-ending plaintiff's car), she sustained injuries to her neck. However, the plaintiff had a considerable pre- and post-accident medical history, including two prior car accidents; a fall down the stairs; an incident during which she tripped and hit her face on a fence; an incident where she tripped and struck her head on a glass door, cracking the glass; several surgeries; and chronic neck problems for which she repeatedly sought and obtained medical treatment for many years before the accident with the defendant.

Following the defendant's default, the defendant argued at the inquest that no damages had been caused by the collision of the two vehicles. Plaintiff contended that, in the instance of a single tortfeasor in default, there was no justification for visiting the proximate cause element of the cause of action for negligence and that the only question at the inquest was the amount of damages suffered by the plaintiff.

The court agreed with the defendant, concluding that “if [the defendant] has a right to litigate damages, and the law justifies that opportunity, then [the defendant] must enjoy the opportunity to challenge the proposition that the damages claimed were a product of this collision.” Id. at 559. This is because a defendant is not liable at all for injury not proximately caused by his breach of duty. Id. at 557.

Similarly, in discussing the scope of an inquest on damages, the Supreme Court of Montana stated that “the defendant may in effect even defeat the action by showing that no damages were caused to the plaintiff by the matters alleged.” Lindsey v. Drs. Keenan, Andrews & Allred, 165 P.2d 804, 809 (Mont. 1946).

Conclusion

There are other situations where the New York courts have permitted the issue of causation to be considered in assessing damages at an inquest. For example, because the measure of damages in an unfair competition claim is the amount that the plaintiff would have made but for the defendant's wrong, and the offending party's conduct must be a “substantial factor” in causing the loss, the defendant was allowed to introduce evidence that the plaintiff's decrease in profits was not entirely due to the defendant's solicitations, but was also caused by, among other things, customer dissatisfaction with the plaintiff. See Suburban Graphics Supply Corp., supra. Thus, before the plaintiff could recover from the defaulting defendant, a causal link between the admitted wrongdoing and the alleged injury had to be established.

Cases like this support a conclusion that an entry of default does not necessarily determine the issue of causation. Moreover, that the Court of Appeals allows a defaulting defendant to introduce proof that will be “determinative of the plaintiff's real damages, which cannot be established by the mere fact of the defendant's default” (Rokina, supra, at 731 (emphasis added)), suggests that a connection between the plaintiff's alleged damages and the admitted wrongdoing is still needed. To hold otherwise is to assess damages in a vacuum.

Therefore, the just and proper conclusion is that a defaulting defendant in a medical malpractice action should not be deemed to have admitted that his treatment was the cause ' and the only cause ' of a plaintiff's injury, and that there is no other possible explanation for the plaintiff's outcome. The question at the inquest on damages must be what damage, if any, was suffered by the plaintiff as a result of the negligence of the defendant. If the plaintiff's injury was caused in whole or in part by, for example, the plaintiff's pre-existing medical condition, the jury should be permitted to consider such evidence in determining the plaintiff's “real damages.” Precluding such evidence would “ignore the practical realities of the parties' dealings and represent an unwarranted punishment for a defendant who has already had the issue of liability removed from the case.” See Amusement Business Underwriters v. American International Group, 66 N.Y.2d 878, 880 (1995).

Katherine W. Dandy and Max G. Gaujean are partners at Brown & Tarantino. They represented the defendant in Gray v. Jaeger, which is discussed iherein. This article first appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Consider the following scenario: A defendant doctor in a medical malpractice case has failed to comply with his discovery obligations. As a result, his answer is stricken and the case proceeds to an inquest on the issue of damages. During the inquest, the defendant attempts to introduce evidence that the plaintiff's injuries were not caused by the doctor's negligence, but by another factor, in whole or in part; namely, the plaintiff's pre-existing medical condition. Plaintiff objects, claiming that the issue of causation was determined by the default. How should the court rule? Should the defendant be permitted to present such evidence, or is he deemed to have admitted, by virtue of his stricken answer, that his negligence was the sole cause of plaintiff's injuries?

New York Law

We will look at this scenario through the lens of New York law, and later look at how other states handle the matter. While one New York court has held that a defaulting defendant cannot introduce such evidence, case law in New York and in other states supports a conclusion that there are situations where causation evidence is properly considered at an inquest on damages following a default. Because the issue of damages is so intertwined with the issue of causation in a medical malpractice action, and because such actions are unique in that a defendant doctor can be negligent without being the cause of any injury, the authors submit that a defaulting defendant should be permitted to introduce evidence on the issue of whether the claimed injury resulted from the alleged malpractice, or from another factor or factors, in whole or in part.

Questions Raised

It is well settled in New York that a defaulting defendant admits all traversable, i.e., deniable, allegations in the plaintiff's complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages. McClelland v. Climax Hosiery Mills , 252 N.Y. 347, 351 (1930), rearg and remittitur denied, 253 N.Y. 533 (1930); Rokina Optical Co. v. Camera King , 63 N.Y.2d 728, 730 (1984).

Unless the damages sought are for a “sum certain” ( See New York's Civil Practice Law and Rules (CPLR) '3215(a)), a defaulting defendant is entitled to participate in an inquest on the issue of damages, at which time he is entitled to “a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages.” Rokina Optical, supra (quoting Reynolds Securities Inc. v. Underwriters Bank and Trust Company , 44 N.Y.2d 568, 572 (1978)). Although New York's highest court, the Court of Appeals, has made clear that a defaulting defendant may not introduce evidence tending to defeat the plaintiff's cause of action, evidence will be allowed involving “circumstances intrinsic to the transactions at issue” in the plaintiff's complaint that, if proven, will be “determinative of the plaintiff's real damages, which cannot be established by the mere fact of the defendant's default.” Id., at 731. Accord Hussein v. Ratcher , 272 A.D.2d 446 (2d Dept. 2000).

Medical Malpractice

Any analysis of what this means in the context of a medical malpractice case ' and what the proper scope of a hearing on damages in such a case should be ' must begin with a discussion of the requisite elements of proof in a New York medical malpractice action. These are: a deviation or departure from accepted practice; and evidence that such departure was a proximate cause of injury or damage. Amsler v. Verrilli , 119 A.D.2d 786 (2d Dept. 1986). The key to liability in such a case is the causal link between the alleged negligence and the claimed injury. A defendant ' even one who is presumed to have been negligent ' is not liable for injury not proximately caused by his breach of duty.

CPLR 3215 does not contemplate that default judgments are to be rubber-stamped. Id. While the plaintiff's burden of proof at an inquest is not stringent, the plaintiff still must allege “enough facts to enable a court to determine that a viable cause of action exists.” Suburban Graphics Supply Corp. v. Nagle , 5 A.D.3d 663, 665 (2d Dept. 2004) (quoting Woodson v. Mendon Leasing Corp. , 100 N.Y.2d 62, 71 (2003)). Obviously, in a medical malpractice cause of action, this includes the often-complicated element of proximate cause.

Without proof of causation, there is no nexus between the duty breached by the defendant, i.e., the deviation or departure from accepted practice, and the injury suffered by the plaintiff. Clearly, the defendant in a medical malpractice case can be negligent without being the cause of any injury. This is especially true where there is more than one possible cause for the plaintiff's injuries.

Medicine is replete with examples in which the doctor's negligent act or failure to act was not the proximate cause of the plaintiff's outcome. In the surgical context, many a plaintiff's condition has worsened following a failed surgery, but whether the deterioration was caused by the doctor's actions or instead by the natural progression of plaintiff's disease is the key inquiry to be made before the doctor can be held responsible and ordered to pay damages.

As one court has observed, “[a]lmost every person who receives the services of a physician is sick or disabled when he first goes to the physician. Thus there lurks the ever present possibility that it was the patient's original affliction rather than the physician's negligence which caused the ultimate damage.” Monohan v. Weichert , 82 A.D.2d 102, 107 (4th Dept. 1981) (quoting Louisell and Williams, Medical Malpractice, 8.07, p. 213).

And as the New York Court of Appeals stated long ago, in discussing proximate cause, “[i]t is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages.” McCahill v. New York Transportation Co. , 201 N.Y. 221, 224 (1911). Therefore, when there is a question of whether the plaintiff's injury “flowed from” the defendant's deviation or departure, or from ' in whole or in part ' another factor, the fact-finder should not be precluded from addressing this question in its consideration of damages, just because the defendant has admitted (by virtue of his default) that he breached a duty of care owed to the plaintiff.

In a brief, two-paragraph decision, New York's Appellate Division, First Department, an intermediate appellate court, has stated that a defendant whose answer was stricken may not introduce evidence at the damages inquest tending to show that the injuries alleged in the complaint were not caused by defendant's malpractice. Gray v. Jaeger , 49 A.D.3d 287 (1st Dept. 2008). (The authors represented the defendant.) The decision in Gray v. Jaeger contains no discussion of the facts of the case, which involved allegations that the defendant, a dermatologist, negligently prescribed and administered contraindicated medication, causing plaintiff to suffer skin damage (uneven bleaching, destruction of pigmentation and discoloration of her skin).

The defendant sought to introduce evidence at the damages inquest that plaintiff had a pre-existing condition known as vitiligo, and that the loss of pigmentation on certain areas of her body was caused by the natural progression of the vitiligo, rather than by the doctor's presumed negligence. Although the trial court ruled that the defendant would be able to explore the issue of whether the plaintiff's loss of pigmentation resulted from the defendant's malpractice or from the vitiligo, the Appellate Division held that such evidence was not permitted, since the defendant's answer had been stricken. In so doing, the authors submit, the court denied the fact-finder the opportunity to determine the plaintiff's “real” damages.

Other States Tackle the Question

The highest courts of other states have concluded that causation ' particularly where there is more than one potential cause for the plaintiff's injuries ' is clearly a relevant inquiry in assessing damages at an inquest. The Supreme Court of Wyoming stated that “[t]here are some situations where the damages issue is so intertwined with the fault issue that, despite a default, the defendant must be allowed to defend on the question of fault.” Schaub v. Wilson, 1998 Wyo. LEXIS 186, 969 P.2d 552, 556 (Wyo. 1998). In Schaub v. Wilson, the plaintiff alleged that as a result of the defendant's negligent driving (in rear-ending plaintiff's car), she sustained injuries to her neck. However, the plaintiff had a considerable pre- and post-accident medical history, including two prior car accidents; a fall down the stairs; an incident during which she tripped and hit her face on a fence; an incident where she tripped and struck her head on a glass door, cracking the glass; several surgeries; and chronic neck problems for which she repeatedly sought and obtained medical treatment for many years before the accident with the defendant.

Following the defendant's default, the defendant argued at the inquest that no damages had been caused by the collision of the two vehicles. Plaintiff contended that, in the instance of a single tortfeasor in default, there was no justification for visiting the proximate cause element of the cause of action for negligence and that the only question at the inquest was the amount of damages suffered by the plaintiff.

The court agreed with the defendant, concluding that “if [the defendant] has a right to litigate damages, and the law justifies that opportunity, then [the defendant] must enjoy the opportunity to challenge the proposition that the damages claimed were a product of this collision.” Id. at 559. This is because a defendant is not liable at all for injury not proximately caused by his breach of duty. Id. at 557.

Similarly, in discussing the scope of an inquest on damages, the Supreme Court of Montana stated that “the defendant may in effect even defeat the action by showing that no damages were caused to the plaintiff by the matters alleged.” Lindsey v. Drs. Keenan, Andrews & Allred , 165 P.2d 804, 809 (Mont. 1946).

Conclusion

There are other situations where the New York courts have permitted the issue of causation to be considered in assessing damages at an inquest. For example, because the measure of damages in an unfair competition claim is the amount that the plaintiff would have made but for the defendant's wrong, and the offending party's conduct must be a “substantial factor” in causing the loss, the defendant was allowed to introduce evidence that the plaintiff's decrease in profits was not entirely due to the defendant's solicitations, but was also caused by, among other things, customer dissatisfaction with the plaintiff. See Suburban Graphics Supply Corp., supra. Thus, before the plaintiff could recover from the defaulting defendant, a causal link between the admitted wrongdoing and the alleged injury had to be established.

Cases like this support a conclusion that an entry of default does not necessarily determine the issue of causation. Moreover, that the Court of Appeals allows a defaulting defendant to introduce proof that will be “determinative of the plaintiff's real damages, which cannot be established by the mere fact of the defendant's default” (Rokina, supra, at 731 (emphasis added)), suggests that a connection between the plaintiff's alleged damages and the admitted wrongdoing is still needed. To hold otherwise is to assess damages in a vacuum.

Therefore, the just and proper conclusion is that a defaulting defendant in a medical malpractice action should not be deemed to have admitted that his treatment was the cause ' and the only cause ' of a plaintiff's injury, and that there is no other possible explanation for the plaintiff's outcome. The question at the inquest on damages must be what damage, if any, was suffered by the plaintiff as a result of the negligence of the defendant. If the plaintiff's injury was caused in whole or in part by, for example, the plaintiff's pre-existing medical condition, the jury should be permitted to consider such evidence in determining the plaintiff's “real damages.” Precluding such evidence would “ignore the practical realities of the parties' dealings and represent an unwarranted punishment for a defendant who has already had the issue of liability removed from the case.” See Amusement Business Underwriters v. American International Group , 66 N.Y.2d 878, 880 (1995).

Katherine W. Dandy and Max G. Gaujean are partners at Brown & Tarantino. They represented the defendant in Gray v. Jaeger, which is discussed iherein. This article first appeared in the New York Law Journal, an ALM sister publication of this newsletter.