| Dentes v Mauser |
| 2012 NY Slip Op 00268 [91 AD3d 1143] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Elsie Dentes, as Administrator of the Estate of George Dentes,Deceased, Respondent, v Jonathan Mauser et al., Appellants. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Mulvey, J.), entered January 18,2011 in Tompkins County, upon a verdict rendered in favor of plaintiff.
In this wrongful death action, plaintiff alleged that defendant Jonathan Mauser (hereinafterdefendant), a cardiologist, caused decedent's October 2006 sudden death by massive heart attackwhen, after a stress test in April 2005, he failed to order a cardiac catheterization to determine theextent of decedent's coronary artery disease. A jury trial was held and, at the close of plaintiff'sproof, defendants moved for a directed verdict, asserting that plaintiff failed to establish a primafacie case for negligence. Supreme Court denied defendants' motion and the jury returned averdict in favor of plaintiff. Defendants then unsuccessfully moved pursuant to CPLR 4404 foran order setting aside the verdict. On defendants' appeal from the judgment entered upon theverdict in favor of plaintiff, we now conclude that the evidence adduced at trial was legallyinsufficient to support the verdict and against the weight of the evidence, and reverse.
To establish wrongful death by medical malpractice, plaintiff was required to prove, throughexpert testimony, "that there was a deviation from accepted standards of medical care and thatsuch deviation was the proximate cause of the [death]" (Hytko v Hennessey, 62 AD3d 1081, 1084 [2009]). Allegations ofmalpractice that are "based on speculation or unsupported by [*2]competent evidence" are insufficient to establish a prima facie case(Chase v Cayuga Med. Ctr. atIthaca, 2 AD3d 990, 991 [2003]). A verdict should be set aside as against the weight ofthe evidence when " 'the evidence so preponderate[d] in favor of [defendants] that [the verdict]could not have been reached on any fair interpretation of the evidence' " (Biello v Albany Mem. Hosp., 49 AD3d1036, 1037 [2008], quoting Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]).After a thorough review of the record, we conclude that plaintiff failed to establish by legallysufficient proof that the alleged negligence on the part of defendant—i.e., the failure toorder a cardiac catheterization—caused decedent's death. In addition, we find that thejury's finding to the contrary is against the weight of the credible evidence adduced at trial.
Plaintiff relied exclusively on the expert testimony of Adrian Grubs, a board-certifiedcardiologist, to establish that defendant's failure to order a cardiac catheterization after the 2005stress test caused decedent's death. Crucial to understanding the causation issues underlying thisappeal is the difference between coronary artery disease, or atherosclerosis, which involves thegradual thickening over years of the artery walls that reduces blood flow to the heart, andthrombus, where a clot forms and can suddenly block an artery. It is undisputed that decedentsuffered from some coronary artery disease; the pathology slides revealed that his arteries hadabout 50% atherosclerosis, and the trial evidence established that this condition would haveexisted 18 months prior to his death, when he was treated by defendant. Cardiac catheterization isused to determine the degree of atherosclerosis in a patient. Here, however, it is undisputed thatdecedent's heart attack was not caused by coronary artery disease, but by a thrombus, whichunquestionably caused his death by suddenly and completely blocking his right coronary artery.
Grubs testified that, had defendant ordered a cardiac catheterization, it would have preventedhis death, but failed to articulate any basis for this conclusion. Although he stated that hebelieved a cardiac catheterization "would have shown a significant block [in the right coronaryartery]" that could have suggested different treatment options, it is clear from his testimony thathe was referring to decedent's 50% atheroscerlosis, and not the thrombus that killed him. Whenpressed about whether a thrombus would have been detected 18 months prior to decedent's death,he stated that "[i]t's hard to tell." Ultimately on the issue of causation, he testified that, in hisopinion, "if [decedent] had been given a chance, depending on what the cardiac cath[eterization]showed, it might have helped [decedent] in prolonging his life." We find this testimony far toovague to establish a legally sufficient link by which the trier of fact could conclude thatdefendant's failure to order a cardiac catheterization led to the clot which caused his massiveheart attack a year and a half later (seeCaruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1504-1505 [2011];Menard v Feinberg, 60 AD3d1135, 1137 [2009]; Postlethwaite vUnited Health Servs. Hosps., 5 AD3d 892, 895 [2004]; Merritt v SaratogaHosp., 298 AD2d 802, 804-805 [2002]).
The weight of the evidence, moreover, cannot support a finding that a cardiac catheterizationwould have prolonged decedent's life. Balanced against Grubs' cautious speculations aboutdecedent's chances had he undergone a cardiac catheterization is a wealth of evidence that theclot that caused decedent's death could not have been detected at the time defendant examineddecedent, and that it was unlikely that any treatment would have prevented this tragedy. Indeed,the evidence conclusively establishes that decedent had a level of coronary artery diseaseconsistent with a man of his age and that, even had a cardiac catheterization been performed, theextent of decedent's atherosclerosis detected thereby would not have warranted [*3]treatment beyond the lifestyle changes that defendant had alreadyrecommended.[FN*]Aside from Grubs' inconclusive testimony, all other medical evidence introduced at trialestablished that the alternative treatments that Grubs discussed as potential options had a cardiaccatheterization been performed—namely, angioplasty or stents—would not havebeen viable options for decedent. It is undisputed that stents or angioplasty are not typically usedunless the blockage was more significant than decedent's and, in fact, that these treatments runthe risk of causing a thrombus, like the one that killed decedent. Indeed, the overwhelmingmedical evidence supports the conclusion that decedent's condition at the time defendant sawhim was not exceptional, that most people have some level of nonobstructive coronary arterydisease by the time they reach middle age and that the appropriate treatment is lifestyle changesand monitoring, just as defendant recommended. We conclude that the evidence with regard toproximate cause so preponderated in defendant's favor that the jury could not have reached itsconclusion based on any fair interpretation of it (see Ernst v Khuri, 88 AD3d 1137, 1137-1139 [2011]; Blakesleev Lubell, 66 AD2d 958, 958-959 [1978]; Deutsch v Doctors Hosp., 19 AD2d 593,594 [1963]).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law and the facts, with costs, motion to set aside the verdict granted andcomplaint dismissed.
Footnote *: Decedent also had a stress testwith echocardiogram in 2001 with negative results for significant coronary disease. It wasestablished at trial that the stress test and echocardiogram is a tool used to identify onlyindividuals with a more significant level of atherosclerosis—i.e., over 70%—thandecedent had when he died. The physician who conducted the test in 2001, like defendant,recommended lifestyle changes and, thereafter, decedent lost 10 pounds. When decedent wasretested by defendant in 2005, his exercise capacity had improved and the tests were againnegative for high scale arterial blockage.