Rodriguez v. Triborough Bridge & Tunnel Authority

In two actions to recover damages for personal injuries, etc., which were consolidated for trial, the defendant Triborough Bridge and Tunnel Authority appeals from two interlocutory judgments of the Supreme Court, Kings County (Schmidt, J.), both entered April 28, 1999, which, upon a jury verdict on the issue of liability finding it 100% at fault in the happening of the accident, are in favor of the plaintiffs in Action Nos. 1 and 2 and against it on the issue of liability.

Ordered that the interlocutory judgments are reversed, on the law, and a new trial on the issue of liability is granted, with costs to abide the event.

The plaintiff in Action No. 1, Nicholas Rodriguez, while driving on a bridge owned and operated by the defendant Triborough Bridge and Tunnel Authority (hereinafter the TBTA), lost control of his vehicle and went into the opposing lane of traffic, resulting in a multiple-vehicle collision. Rodriguez thereafter commenced Action No. 1 against the TBTA alleging that a proximate cause of the accident was unsafe metal grating on the bridge roadway. The TBTA alleged that a proximate cause of the accident was that Rodriguez was intoxicated. In Action No. 2, consolidated for purposes of trial, the plaintiffs Catherine Moore and John Moore, also involved in the accident, sought damages from, among others, Rodriguez and the TBTA. At trial, the TBTA offered a certified copy of Rodriguez’s hospital record, which set forth the result of a blood test indicating a blood alcohol level of .114. The court denied admission into evidence of that portion of the record which set forth the test result. Ultimately, the jury found the TBTA 100% at fault in the happening of the accident. We now reverse and order a new trial on the issue of liability.

The blood alcohol test result, as set forth in a certified hospital record, was admissible as prima facie evidence of the same pursuant to CPLR 4518 (c) (see, Cleary v City of New York, 234 AD2d 411; Maxcy v County of Putnam, 178 AD2d 729; LaDuke v State Farm Ins. Co., 158 AD2d 137; Tinao v City of New York, 112 AD2d 363; Campbell v Manhattan & Bronx Surface Tr. Operating Auth., 81 AD2d 529). To the extent that our decision in Marigliano v City of New York (196 AD2d 533) may be read to the contrary, it should not be followed.

We disagree with our dissenting colleague that the testimony of Dr. Lisa Dresner, the attending physician in the emergency room when Rodriguez was seen after the accident, warranted denial of the admission of the hospital record as it concerned the blood alcohol test, rather than only presenting a question as to the weight such evidence was to be accorded (see, Cleary v City of New York, supra; Maxcy v County of Putnam, supra; Tinao v City of New York, supra; CPLR 4518 [a]).

Dr. Dresner testified that the administration of blood tests, including one for alcohol content, was “routine procedure” for trauma patients, and was required “[f]or reasons of diagnosis and treatment” and to aid the anesthesiologist if surgery was needed. In 1993, when Rodriguez was seen, the relevant procedures were as follows: (1) upon entry to the emergency room, blood would be drawn “right away” by a physician, labeled, and sent by pneumatic tube to an in-house laboratory for testing, and (2) the test results would be faxed back to the emergency room, or could be retrieved by telephone, where a resident had the duty to collect the information and make the proper entries in the hospital record. This testimony supports a conclusion that the hospital record was properly certified and the test results were admissible (see, People v Kennedy, 68 NY2d 569; Williams v Alexander, 309 NY 283; Wilson v Bodian, 130 AD2d 221).

We disagree with our dissenting colleague that great significance may be attached to the fact that a laboratory slip concerning the subject blood alcohol test was not appended to Rodriguez’s hospital record. Dr. Dresner explained that due to a patient’s movement throughout the hospital for various tests, it was not unusual in 1993 that such slips were not returned to the record. Further, and more significantly, Dr. Dresner, upon close questioning by the court, stated that the lack of the slip would not impeach the reliability of the blood alcohol entry, which she had co-signed, and that if major surgery was needed, she and the anesthesiologist would rely upon the entry without more.

Similarly, her comment that the general state of hospital records in 1993 was “chaos”, when placed in context, did not impeach the reliability of Rodriguez’s hospital record or the blood alcohol test. The statement was made during the following colloquy:

“the court: When you say it was a problem, was it a problem that being there was no slips that the results being reported in the chart were not accurate to a hundred percent degree.

“dr. dresner: Not at all. The problem is, as this chart is, it was chaos. Nobody knew who — nobody knew who drew the blood. Nobody knew who wanted the blood drawn. When the results came back, there was no record that someone saw it, and a lot of this didn’t get billed properly * * *

“counsel: There was no problem in terms of somebody’s blood getting under somebody elses [szc] name?

“dr. dresner: That’s not the problem that I’m referring to” (emphasis supplied).

Finally, the second blood alcohol test referred to by the dissent, which indicated a normal blood alcohol content, resulted from a test conducted many hours after Rodriguez’s morning admission. Thus, it did not impeach the prior blood alcohol test. In sum, the Supreme Court erred in denying admission of the test result, and the error requires a new trial on the issue of liability. In light of this conclusion, the remaining contentions of the TBTA need not be addressed. Ritter, J. P., Altman and Feuerstein, JJ., concur.