| Ross v Mandeville |
| 2007 NY Slip Op 09220 [45 AD3d 755] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Taylor Ross, Respondent, et al., Plaintiff, v EdgarMandeville, Appellant, et al., Defendant. |
—[*1] Jeffrey A. Rubin & Assoc., P.C., New York, N.Y., for respondent.
In an action to recover damages for medical malpractice, etc., the defendant EdgarMandeville appeals from (1) an order of the Supreme Court, Queens County (Weiss, J.), datedOctober 27, 2005, which denied his motion pursuant to CPLR 4404 (a) to set aside the juryverdict on the issue of liability and for judgment as a matter of law, or alternatively, to set asidethe jury verdict on the issue of liability as against the weight of the evidence and for a new trial,or alternatively, to reduce the damages for past pain and suffering and future pain and sufferingas excessive, and (2) a judgment of the same court entered April 3, 2006, which, inter alia, uponthe jury verdict awarding damages to the infant plaintiff, Taylor Ross, in the principal sums of$200,000 for past pain and suffering and $350,000 for future pain and suffering over a period of77 years, is in favor of the plaintiff Taylor Ross and against him.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof awarding damages in the principal sums of $200,000 for past painand suffering and $350,000 for future pain and suffering, and granting a new trial with respectthereto; as so modified, the judgment is affirmed, with costs to the defendant Edgar [*2]Mandeville, unless within 30 days after service upon the plaintiffDionne Hubbard, as guardian of Taylor Ross, of a copy of this decision and order, the plaintiffDionne Hubbard, as guardian of Taylor Ross, shall serve and file in the office of the Clerk of theSupreme Court, Queens County, a written stipulation consenting to reduce the verdict as todamages for past pain and suffering from the sum of $200,000 to the sum of $45,000, and forfuture pain and suffering from the sum of $350,000 to the sum of $80,000; in the event that theplaintiff Dionne Hubbard, as guardian of Taylor Ross, so stipulates, then the judgment, as soreduced and amended, is affirmed, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The evidence at trial showed that on September 25, 2001, the plaintiff Dionne Hubbard, whowas pregnant with her daughter Taylor, went into labor. Hubbard was rushed to the defendantNew York Hospital Medical Center of Queens (hereinafter the Hospital), where she wasconnected to a fetal heart monitor, which indicated that Taylor had an abnormally high fetal heartrate. Hubbard also underwent a pelvic examination, which indicated that a prolonged deliverywas expected. Based on this information, the defendant Edgar Mandeville, who was Hubbard'sprivate physician, determined that a Caesarian section (hereinafter C-Section) was necessary.
Hubbard was then taken to the operating room, where, after several attempts to administer anepidural proved unsuccessful, she was placed under general anesthesia. This turned what wasdescribed as an "urgent" C-section into an "emergency."
After the initial incision was made, Mandeville allowed a third-year resident who wasemployed by the Hospital to make the incision across Hubbard's uterus. In making that incision,the resident lacerated Taylor's forehead. After Taylor was delivered, a plastic surgeon sutured herlaceration. At the time of the trial, Taylor, who was three years old, had a scar.
Contrary to Mandeville's contention, the jury's determination that he was liable for Taylor'sinjuries is supported by legally sufficient evidence. The evidence provided a rational basis for thejury's findings that the resident was under Mandeville's "direct supervision" when she cutHubbard's uterus, that she departed from good and accepted medical practice in cuttingHubbard's uterus, and that such departure was a proximate cause of Taylor's injuries (seeCohen v Hallmark Cards, 45 NY2d 493 [1978]). Furthermore, the jury's determination wasbased on a fair interpretation of the evidence, and hence, was not against the weight of theevidence (see Nicastro v Park, 113 AD2d 129, 134 [1985]). Where, as here, conflictingexpert testimony is presented, the jury is entitled to accept one expert's opinion, and reject that ofanother expert (see Speciale vAchari, 29 AD3d 674, 675 [2006]; Connolly v Pastore, 203 AD2d 412, 413[1994]). The jury's resolution of conflicting expert testimony is entitled to great weight onappeal, as the jury had the opportunity to observe and hear the experts (see Fryer v Maimonides Med. Ctr., 31AD3d 604, 605 [2006]; Speciale v Achari, 29 AD3d at 675).
Mandeville's challenges to certain portions of the jury charge and the verdict sheet areunpreserved for appellate review (see CPLR 4110-b; Kwa v Roberts, 18 AD3d 444 [2005]; Hamilton vRaftopoulos, 176 AD2d 916, 917 [1991]). In any event, his contentions are without merit. Inthis regard, one physician can be held vicariously liable for another physician's active negligenceif the physician [*3]had "some control of" the actively negligentphysician's "course of treatment" of a patient (Kavanaugh v Nussbaum, 71 NY2d 535,547 [1988]; see Graddy v New York Med. Coll., 19 AD2d 426, 429 [1963]). Thus, afinding of vicarious liability could be predicated upon a physician's "control in fact" over anactively negligent physician (Kavanaugh v Nussbaum, 71 NY2d at 547; see Hill v St.Clare's Hosp., 67 NY2d 72, 79 [1986]; cf. Reeck v Huntington Hosp., 215 AD2d464, 465-466 [1995]). As previously indicated, evidence was presented from which the jurycould rationally conclude that Mandeville exercised "control in fact" over the manner in whichthe resident made the uterine incision. Therefore, contrary to Mandeville's contention, the trialcourt correctly instructed the jury that it could hold him vicariously liable for the resident'snegligent acts if it concluded that the resident was under his "direct supervision" at the time shemade the uterine incision (see Kavanaugh v Nussbaum, 71 NY2d at 547; Turcsik v Guthrie Clinic, Ltd., 12AD3d 883, 885-886 [2004]). Furthermore, contrary to Mandeville's contention, since he wasproperly found to be vicariously liable, the jury did not need to apportion fault between him andthe resident (see CPLR 1602 [2] [iv]; Rangolan v County of Nassau, 96 NY2d42, 47 [2001]).
However, we agree with Mandeville that the awards for past pain and suffering and futurepain and suffering deviate materially from what would be reasonable compensation, and areexcessive to the extent indicated (see CPLR 5501 [c]; cf. Seidner v Unger, 245AD2d 362 [1997]; Artis v City of New York, 183 AD2d 685, 686 [1992]). The evidenceshowed that the scar was approximately two inches long, near the hairline, and not readilynoticeable. In addition, Hubbard testified that the scar has "lightened" over time.
Mandeville's remaining contentions either are without merit or do not require reversal.Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.