| Swartz v St. Mary's Hosp. of Amsterdam |
| 2012 NY Slip Op 08584 [101 AD3d 1273] |
| December 13, 2012 |
| Appellate Division, Third Department |
| David Swartz, Appellant, v St. Mary's Hospital of Amsterdam et al.,Defendants, and Janet Alloway et al., Respondents. |
—[*1] Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), forrespondents.
Stein, J. Appeals (1) from a judgment of the Supreme Court (McDonough, J.), entered July27, 2011 in Albany County, upon a verdict rendered in favor of certain defendants, and (2) froman order of said court, entered April 9, 2012 in Albany County, which denied plaintiff's motion toset aside the verdict.
Plaintiff presented at defendant St. Mary's Hospital of Amsterdam following a dirt bikeaccident. He was evaluated in the emergency department by defendant Janet Alloway, aphysician's assistant, who sent plaintiff for X rays. A radiologist subsequently determined thatplaintiff had suffered a medial tibial plateau fracture. Alloway later testified that, upon learningof this diagnosis, she contacted an orthopedic surgeon, who advised her to place plaintiff's leg inan immobilizer, provide him with pain medication and instruct him to see a surgeon the next day.When plaintiff was examined by a surgeon the next day, it was determined that, in addition to thefracture, he had suffered a vascular injury that had cut off circulation to his leg, resulting in theloss of the use of most of his leg.[*2]
Plaintiff commenced this medical malpractice actionagainst Alloway and defendants Emergency Physicians of New York, P.C. and Atlantic PhysicianServices of Maryland, P.C. (hereinafter collectively referred to as defendants), amongothers.[FN*] After a verdict was returned in favor of defendants, plaintiff moved to set it aside pursuant toCPLR 4404 on the grounds of juror misconduct and because it was against the weight of theevidence. At the conclusion of a hearing, Supreme Court denied the motion in its entirety.Plaintiff now appeals from the judgment and the order denying his motion.
We affirm. Supreme Court properly permitted the jury to hear the deposition testimony ofone of plaintiff's treating orthopedic surgeons, Russell Cecil, as to whether Alloway met theapplicable standard of medical care for physician's assistants in the emergency department. Therecord clearly demonstrates that Cecil had the skill, training, education, knowledge andexperience in orthopedic surgery from which it could be assumed that his opinion as to theproper treatment of a tibial plateau fracture was reliable (see Matter of Sundaram v Novello, 53 AD3d 804, 806 [2008],lv denied 11 NY3d 708 [2008]; Matter of Lampidis v Mills, 305 AD2d 876,877-878 [2003]). The record also reflects that Cecil employed a physician's assistant in his office,was familiar with the standard of care to which a physician's assistant is held and had providedsome training to physician's assistants in the emergency department. The fact that Alloway andCecil do not practice in the same specialty goes to the weight to be accorded to his testimony, notits admissibility (see Carter v Tana,68 AD3d 1577, 1580 [2009]; Payant v Imobersteg, 256 AD2d 702, 704-705 [1998]).Thus, we discern no abuse of Supreme Court's discretion or error of law in admitting Cecil'stestimony (see De Long v County of Erie, 60 NY2d 296, 307 [1983]; Robinson v Bartlett, 95 AD3d1531, 1536 [2012]).
Nor did Supreme Court abuse its discretion in denying plaintiff's motion seeking a new trialon the ground that the verdict was tainted by juror misconduct. The gravamen of plaintiff'sargument is that one of the jurors—an attorney—improperly influenced the otherjurors. Although a court must generally avoid inquiry into the jury's deliberative process (seePeople v Brown, 48 NY2d 388, 393 [1979]; People v Karen, 17 AD3d 865, 867 [2005], lv denied 5NY3d 764 [2005]), a jury's verdict may be overturned by a showing of improper influence by ajuror, including even " 'well-intentioned jury conduct which tends to put the jury in possession ofevidence not introduced at trial' " (People v Maragh, 94 NY2d 569, 573 [2000], quotingPeople v Brown, 48 NY2d at 393; see People v Douglas, 57 AD3d 1105, 1106 [2008], lvdenied 12 NY3d 783 [2009]). However, the alleged misconduct must be based uponsomething beyond the juror's personal experience (see People v Santi, 3 NY3d 234, 249 [2004]; People vMaragh, 94 NY2d at 574; Matter of Buchanan, 245 AD2d 642, 646 [1997], lvdismissed 91 NY2d 957 [1998]; People v Duffy, 185 AD2d 528, 529 [1992], lvdenied 80 NY2d 903 [1992]).
Here, the jury unanimously found that Alloway's examination and treatment of plaintiff didnot depart from the applicable standard of care (question 1 on the verdict sheet) and only onejuror dissented on the remaining questions presented on the verdict sheet. The lone dissentingjuror later testified that, based upon a document received in evidence, the attorney-juror told theother jury members during the deliberations that the case had settled with regard to all the doctorsand hospitals originally named as defendants. The dissenting juror further testified that, shortly[*3]thereafter, two of the jurors changed their votes. Nonetheless,the attorney-juror's statement was based upon her background experience, rather than on specificextra-record information directly related to the litigation and, as Supreme Court found, did notrelate to a material issue in the case or prejudice plaintiff's right to a fair trial (see People vSanti, 3 NY3d at 249-250; 23 Jones St. Assoc. v Beretta, 280 AD2d 372, 373 [2001];Matter of Buchanan, 245 AD2d at 646). Moreover, Supreme Court gave the jurycautionary instructions during voir dire and during the jury charge that they should not consideror accept any advice about the law from any source other than the court. Under thesecircumstances, the court did not abuse its discretion in determining that the jury was notimproperly influenced by the attorney-juror (see Snediker v County of Orange, 58 NY2d647, 649 [1982]; People v Artis, 90AD3d 1240, 1242 [2011], lv denied 18 NY3d 955 [2012]).
We are also unpersuaded by plaintiff's contention that the verdict as to whether Allowaybreached the standard of care in her examination and treatment of plaintiff was against the weightof the evidence. Alloway testified that, despite the absence of a notation in the records, she tookone pulse measurement on the top of plaintiff's foot upon his admission to the emergencydepartment. Although plaintiff offered the testimony of several expert witnesses that Alloway'sfailure to take two different pulse measurements was a departure from the applicable standard ofcare, defendants also presented expert testimony that Alloway's treatment of plaintiff met thestandard of care. In view of defendants' presentation of credible conflicting medical evidence, itcannot be said that there was no valid line of reasoning or fair interpretation of the evidenceunder which the jury could have found in favor of defendants (see CPLR 4404 [a];Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502,1506-1507 [2011]; compare Dentes vMauser, 91 AD3d 1143, 1144 [2012], lv denied 19 NY3d 811 [2012]).Accordingly, Supreme Court's decision to deny plaintiff's motion to set aside the verdict on thisground was well within its discretion and will not be disturbed (see Straub vYalamanchili, 58 AD3d 1050, 1051 [2009]; Packard v State Farm Gen. Ins. Co., 268AD2d 821, 822 [2000]).
Plaintiff's remaining contentions have been considered and are unavailing.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment and order are affirmed,with costs.
Footnote *: Although St. Mary's Hospital ofAmsterdam and numerous other parties were also named as defendants, a subsequent stipulationdiscontinued the action against them.