| Lalanne v Nyack Hosp. |
| 2007 NY Slip Op 08997 [45 AD3d 645] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Marie Martine Lalanne, Respondent, et al.,Plaintiff, v Nyack Hospital, Defendant, and Nicholas Klein et al.,Appellants. |
—[*1] Brigitte M. Gulliver, Stony Point, N.Y., for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendants NicholasKlein and Anjali Thukral appeal from a judgment of the Supreme Court, Rockland County(Weiner, J.), entered April 19, 2006, which, upon a jury verdict and upon an order of the samecourt entered September 30, 2006, denying their motion pursuant to CPLR 4404 to set aside thejury verdict and for judgment as a matter of law, or alternatively, to set aside the jury verdict asagainst the weight of the evidence and for a new trial, is in favor of the plaintiff Marie MartineLalanne and against them in the sum of $803,101.41, representing the total net present value ofthe verdict plus interest from the date of the verdict.
Ordered that the judgment is affirmed, with costs.
The defendants Nicholas Klein and Anjali Thukral (hereinafter the defendants) performed ahysterectomy on the plaintiff Marie Martine Lalanne (hereinafter the plaintiff) on October 31,2000. Three days later, the plaintiff complained of numbness in her left leg, and was ultimatelyunable to walk without the assistance of a cane. Although a physical therapist and a neurologistexamined the plaintiff while she was in the hospital, the defendants were unable to determine thenature or cause of the plaintiff's leg injury.
The plaintiffs commenced this malpractice action alleging, inter alia, that the defendantsimproperly placed a self-retaining retractor during the surgery that exerted pressure on theplaintiff's left femoral nerve, damaging the nerve and causing her injuries. The retractor is asurgical device that is used to expand the abdominal cavity during a hysterectomy. At trial, the[*2]defendants testified that they inserted the symmetrical devicetogether, with Dr. Thukral working on the left side and Dr. Klein on the right.
The plaintiff presented the testimony of an expert neurologist who said she suffered damageof the left femoral nerve, which occurred at the time of the surgery. The plaintiff also presentedthe testimony of an expert obstetrician/gynecologist who stated that the only way such an injurycould occur during a hysterectomy was if the doctors improperly placed the retractor so that itimpinged on the muscle where the femoral nerve runs. The expert opined that the plaintiff'sinjuries resulted from the improper placement of the retractor, which was "below the standard ofcare."
At the precharge conference, both the plaintiff's attorney and the defendants' attorneyrequested that the defendants be listed separately on the verdict sheet. The court denied therequests, noting that both parties advanced on a theory that the procedure was performed inunison by the defendants, and so there could be no apportionment of liability between them. Thejury was asked whether the "defendants Nicholas Klein, M.D. and/or Anjali Thukral, M.D. depart[ed] from good and accepted medical practice in improperly placing the retractor whileperforming surgery upon plaintiff Marie Martine Lalanne." The jury answered affirmatively andawarded the plaintiff damages. The court entered judgment accordingly, after denying thedefendants' motion pursuant to CPLR 4404 to set aside the jury verdict and for judgment as amatter of law, or alternatively, to set aside the jury verdict as against the weight of the evidenceand for a new trial.
The Supreme Court correctly denied the request to list the defendants separately on theverdict sheet since both parties submitted that the retractor was placed at the same time by thedefendants. There was no evidence presented at trial to support an apportionment of faultbetween the defendants, and neither defendant sought contribution from the other. Moreover, thecourt correctly denied the defendants' motion pursuant to CPLR 4404 to set aside the jury verdict.There was sufficient evidence from which a reasonable person could conclude that it was moreprobable than not that the plaintiff's injury was caused by the improper placement of the retractor(see Speciale v Achari, 29 AD3d674 [2006]; Johnson v JamaicaHosp. Med. Ctr., 21 AD3d 881, 883 [2005]). Furthermore, the jury was entitled to creditthe testimony of the plaintiffs' experts over that of the defendants' experts. Its verdict, based on afair interpretation of the evidence, was not against the weight of the evidence (see Speciale vAchari, 29 AD3d at 675; see alsoShi Pei Fang v Heng Sang Realty Corp., 38 AD3d 520, 521 [2007]). Schmidt, J.P.,Rivera, Santucci and Balkin, JJ., concur.