Opinion
November 8, 1982
In a wrongful death action, defendant appeals from a judgment of the Supreme Court, Queens County (Zelman, J.), dated December 28, 1981, in favor of plaintiff, after a jury trial. Judgment reversed, on the law and as a matter of discretion, and new trial granted, with costs to abide the event. The complexity of the factual issues in this lengthy medical malpractice trial (which the jury decided in some two hours) called for particular clarity and accuracy in the court's marshaling of the evidence, and for avoidance of any indication of the court's own opinion as to the facts or the credibility of any of the witnesses (cf. 8 Carmody-Wait 2d, N Y Prac, §§ 57:12, 57:13). At bar, however, not only was the court's marshaling of the facts confusing and inaccurate with regard to certain important details, it also manifested mistrust, skepticism, and bias on the part of the court as to the credibility of decedent's treating physician, and additionally, with regard to the testimony of defendant's two other medical witnesses. Included among the inaccuracies were statements by the court that Dr. Buchberg, defendant's chief medical expert witness, admitted that the fact that blood gas studies were not performed during the last 16 hours of decedent's life, and that X rays were not taken of the endotracheal tube in situ, constituted departures from proper medical standards of practice, when in fact, Dr. Buchberg testified directly to the contrary. In addition, the trial court's negative review, inter alia, of the testimony of Dr. Hart, the treating physician, could not but convey the impression that the court favored plaintiff's case. Furthermore, the court's instructions as to Dr. Hart were susceptible to the interpretation that the court was of the opinion that this particular treating physician was an incompetent practitioner. Suffice it to say that the cumulative effect of these and other errors "tipped the delicate balance so necessary to the preservation of the requirements of a fair trial" and precluded the jury from reaching an objective and impartial verdict ( Gionta v. Whyzmuzis, 44 A.D.2d 850; see Coneys v. City of New York, 48 A.D.2d 651; see, generally, 4 Weinstein-Korn-Miller, N Y Civ Prac, pars 4404:15, 4404:17). A new trial is therefore required. Mollen, P.J., Niehoff, Rubin and Boyers, JJ., concur.