| Longtin v Miller |
| 2015 NY Slip Op 08017 [133 AD3d 939] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| Deborah Longtin et al., Appellants, v James R. Milleret al., Respondents. |
DeGraff, Foy & Kunz, LLP, Albany (Luke S. Malamood of counsel), forappellants.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Molly C. Casey ofcounsel), for respondents.
Devine, J. Appeal from an order of the Supreme Court (Teresi, J.), entered June 26,2014 in Albany County, which denied plaintiffs' motion to set aside a verdict in favor ofdefendants.
Plaintiff Deborah Longtin was a longtime patient of defendant James R. Miller, aplastic surgeon who was affiliated with defendant Albany Plastic Surgeons PLLC as of2008. Miller performed several procedures on Longtin in February 2008, including aface lift, brow lift and the injection of a substance known as Sculptra to augment hercheeks. Longtin later developed problems with her right eyelid and required surgery toexcise "foreign body granulomas featuring refractile foreign material and old suturematerial."
Longtin and her husband, plaintiff Lawrence Salvagni, believed that the granulomashad resulted from the Sculptra injections. They accordingly commenced the presentaction, alleging that Miller had failed to obtain Longtin's informed consent for theinjections of Sculptra and, moreover, had deviated from the accepted standard of careboth by placing Sculptra so close to her eyes and by failing to give her suitableinstructions for aftercare.[FN1] Following a jury trial, a verdict wasrendered in favor of defendants. Plaintiffs moved to set aside the verdict, arguing that thejury's findings with regard to questions three, five and seven on the verdict sheet werenot [*2]supported by legally sufficient evidence and wereagainst the weight of the evidence (see CPLR 4404 [a]). Supreme Court deniedthe motion, and plaintiffs now appeal.
It is initially unclear whether all of the trial testimony is before us, as the record onappeal does not contain a complete, consecutively paginated copy of the trial transcript.Ordinarily, "[a] record on appeal is fatally deficient if this Court is unable to render aninformed decision on the merits because the record lacks relevant documents andtranscripts of the proceedings held before the trial court" (Bouchey v Claxton-Hepburn Med.Ctr., 117 AD3d 1216, 1216 [2014]). In this case, however, the parties stipulatedto the record on appeal and do not dispute that it contains all of the germane testimony.This is accordingly "not a situation where the absence of a trial transcript preclude[s]meaningful review" and, as such, the absence of the full trial transcript is not a fataldefect (McPherson v City ofNew York, 122 AD3d 809, 810 [2014]; compare Bouchey vClaxton-Hepburn Med. Ctr., 117 AD3d at 1216-1217).
Turning to the merits, we affirm. Where "there is simply no valid line of reasoningand permissible inferences which could possibly lead rational [people] to the conclusionreached by the jury on the basis of the evidence presented at trial," a verdict may be setaside as unsupported by legally sufficient evidence (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; seeLang v Newman, 12 NY3d 868, 870 [2009]; Revell v Guido, 124 AD3d 1006, 1010 [2015]). If legallysufficient evidence is found to support a verdict, it may nevertheless be set aside asagainst the weight of the evidence if "the evidence so preponderate[d] in favor of the[plaintiffs] that [the verdict] could not have been reached on any fair interpretation of theevidence" (Lolik v Big v Supermarkets, 86 NY2d 744, 746 [1995] [internalquotation marks and citation omitted]; see Grassi v Ulrich, 87 NY2d 954, 955[1996]; Revell v Guido, 124 AD3d at 1010). Applying these standards to therecord before us, we agree with Supreme Court that the jury's resolution of questionsthree, five and seven on the verdict sheet ran afoul of neither.
The third question on the verdict sheet asked whether Miller "deviate[d] fromacceptable standards of medical care by injecting Sculptra into the periorbital areas of. . . Longtin's face." While there was a considerable amount of rancor at trialas to the exact definition of the periorbital area, the issue distills to the fact that Sculptrashould not be injected into areas immediately surrounding the eye, such as the eyelids.Miller testified, and his operative note indicated, that he had appropriately injectedSculptra into an area lower on Longtin's face. His contention was called into question,however, by the fact that granulomas, which are known to be caused by injections ofSculptra, were later excised from Longtin's right eyelid.
Miller and Patricia Fox, a plastic surgeon testifying on his behalf, addressed thosequestions, testifying that the granulomas could have been caused by sutures made fromthe same substance as Sculptra. Longtin had undergone prior procedures around her eyesand, in fact, sutures were placed in her eyelids during the same procedure in which theinjections of Sculptra occurred. Fox further noted that the "refractile foreign material"found in the granulomas could have been caused by steroids injected by anotherphysician. To put it differently, Miller and Fox took the position that, although thegranulomas could have been caused by Sculptra, they could have formed just as easily byother means. The foregoing provides a valid line of reasoning from which the jury couldrationally conclude that Miller did not inject Sculptra in an inappropriate area and, as aresult, did not depart from accepted medical practice in administering the injections.Moreover, "giving due deference to the jury's credibility assessments and resolution ofthe conflicting expert testimony," it cannot be said that the conflicting evidence"preponderated so strongly in [plaintiffs'] favor that the jury's conclusion could not havebeen based on any fair interpretation of the evidence" (Skelly-Hand v Lizardi, 111AD3d 1187, 1189-[*3]1190 [2013]; see Wolfe v St. Clare's Hosp. ofSchenectady, 57 AD3d 1124, 1126 [2008]; Biello v Albany Mem. Hosp., 49 AD3d 1036, 1038[2008]).
Question five inquired whether Miller deviated from accepted medical standards byfailing to instruct Longtin to massage the Sculptra injection sites postoperatively. Millertestified that he orally advised Longtin to massage the affected areas—an activitythat would lessen the chance of granulomas developing—but did not give writteninstructions in that regard.[FN2] He further testified that there wasnothing unusual about his actions, as Longtin had undergone multiple facial surgeriesand was well aware that she would be expected to massage the affected areas. Foxindicated that accepted medical practice would ordinarily require written aftercareinstructions, but opined that oral instructions were sufficient here because Longtin was aknowledgeable patient who had been treating with Miller for over a decade. This proofwas legally sufficient to permit the jury to find that Miller gave "proper instructions tohis patient in relation to [postoperative] conduct," and we cannot say that its decision todo so was against the weight of the evidence (Pike v Honsinger, 155 NY 201,210 [1898]).
Finally, question seven asked whether Miller obtained the informed consent ofLongtin to perform the injections of Sculptra. Miller testified that he fully discussed therisks of the injections with Longtin, and documentary evidence corroborates histestimony. Indeed, while Longtin may not have received any detailed writtendocumentation as to those risks, she executed a consent form reflecting that sheunderstood "the alternatives, and reasonable risks, and the desired benefits" of theinjections. Fox additionally explained that no detailed consent forms existed for Sculptrainjections at the time the procedure here was performed, and opined that Miller hadobtained the informed consent of Longtin. This proof, in short, supported the jury'sverdict (see Murray vManiatis, 21 AD3d 1012, 1013 [2005]; cf. Keane v Sloan-Kettering Inst. forCancer Research, 96 AD2d 505, 506 [1983]).
Plaintiffs' remaining arguments, to the extent they are properly before us, have beenexamined and found to lack merit.
Lahtinen, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,with costs. [Prior Case History: 2014 NY Slip Op 31571(U).]
Footnote 1:Plaintiffs discontinuedclaims against another physician and a hospital prior to trial, leaving Miller anddefendant Albany Plastic Surgeons PLLC as the sole defendants.
Footnote 2:Miller did not mentionthe need to massage in his office notes until an appointment with Longtin several weeksafter the surgery. He testified that he specifically noted the need to continue massage atthat point because "it would be past the routine postoperative of massage and she was[being required] to continue massage."