Goff v. Paul

Appeal from a judgment of the Supreme Court, Steuben County (Joseph W. Latham, A.J.), entered January 9, 2003. The judgment was entered, upon a jury verdict, dismissing the complaint against defendant Stephen E. Paul, M.D. in a medical malpractice action. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff commenced this medical malpractice action alleging that Stephen E. Paul, M.D. (defendant) negligently performed two back surgeries on him. Plaintiff did not call defendant as a witness in his direct case, and defendant testified as a fact witness for the defense. Although defendant’s attorney did not elicit any opinion testimony from defendant during his direct examination, plaintiff nevertheless sought to elicit opinion testimony from defendant on cross-examination in order to impeach his testimony. Plaintiff sought to question defendant with respect to the suspension of his privileges at a [972] hospital, a peer review study that was critical of his work, and his prior alcohol dependency. It was undisputed, however, that defendant was licensed to practice medicine at the time he performed plaintiff’s surgeries, and plaintiff was allowed to elicit from defendant testimony that he ceased practicing medicine one month after plaintiff’s second surgery. In addition, we note that plaintiff conceded that the hospital suspension and peer review study did not pertain to the surgeries performed on plaintiff. Plaintiff also conceded that there was no proof of alcohol abuse at the time defendant performed plaintiffs surgeries. “The scope and extent of cross-examination are within the broad discretion of the trial court” (Holmes v Weissman, 251 AD2d 1078, 1079 [1998]; see Eagle Pet Serv. Co. v Pacific Empls. Ins. Co., 175 AD2d 471, 472 [1991], lv denied 79 NY2d 753 [1992]), and we conclude that Supreme Court did not abuse its discretion in agreeing with defendant that plaintiff was exceeding the scope of direct examination in his cross-examination of defendant and in denying plaintiffs request to reopen plaintiffs case to call defendant as an expert witness. In addition, the court had the discretion to limit plaintiffs inquiry into collateral matters on cross-examination (see Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]; Eagle Pet Serv. Co., 175 AD2d at 472). All concur except Gorski, J., who dissents and votes to reverse in accordance with the following memorandum.