| Norton v Nguyen |
| 2008 NY Slip Op 01881 [49 AD3d 927] |
| March 6, 2008 |
| Appellate Division, Third Department |
| Jamie Lee Norton et al., Respondents, v Patricia Nguyen et al.,Appellants. |
—[*1] D'Agostino, Krackeler, Baynes & Maguire, P.C., Menands (Mae E. D'Agostino of counsel),for Deborah Kaufman, appellant. Gurfein & Douglas, L.L.P., New York City (Michael J. Hutter of Powers & Santola, L.L.P.,Albany, of counsel), for respondents.
Kane, J. Appeals (1) from an order of the Supreme Court (Sise, J.), entered December 7,2006 in Fulton County, which partially denied defendants' motion to set aside the verdict, and (2)from a judgment of said court, entered January 24, 2007 in Fulton County, upon a verdictrendered in favor of plaintiffs.
Plaintiff Jamie Lee Norton (hereinafter plaintiff) gave birth to her second child at defendantNathan Littauer Hospital and Nursing Home. Defendant Patricia Nguyen, an obstetricianemployed by the hospital, performed the delivery. During the hospital stay, defendant DeborahKaufman, another obstetrician employed by the hospital, also provided care for plaintiff. The dayafter Nguyen discharged plaintiff from the hospital, plaintiff was readmitted. She wassubsequently diagnosed with a virulent group A streptococcal infection which spread throughouther internal organs, requiring the surgical removal of her uterus, ovaries and fallopian tubes, aswell as other medical interventions.
Plaintiff and her husband, derivatively, commenced this medical malpractice action mainlyalleging that defendants were negligent in failing to recognize that she was suffering from [*2]an infection prior to her discharge from the hospital. A jury founddefendants negligent, awarded plaintiff $1 million for past pain and suffering and $4 million for57 years of future damages, and awarded her husband $250,000 for past pain and suffering and$500,000 for 50 years of future damages. Supreme Court denied defendants' motion to set asidethe verdict, but reduced the future damages to $2 million for plaintiff and $250,000 for herhusband. Defendants appeal.
The verdict was not against the weight of the evidence. The day after plaintiff gave birth,while Kaufman was providing care, plaintiff experienced tachycardia, had severe abdominalpain, an elevated white blood cell count and increased bands of immature white blood cells.Although plaintiff did not have a fever, she was taking pain medication which could reduce hertemperature and mask a fever. The following day, while Nguyen was providing care anddischarged plaintiff, plaintiff continued to experience tachycardia, had an elevated white bloodcell count and increased bands, no bowel sounds and severe abdominal pain. While defendants'witnesses testified that considering or treating for an infection was not warranted becauseplaintiff did not have a fever or uterine tenderness, plaintiffs' witnesses testified that defendants'care fell below the standard of care by not recognizing that plaintiff had the signs and symptomsof a postpartum infection and investigating the source to diagnose and treat that infection.Plaintiffs' expert witnesses further testified that if the infection had been timely diagnosed andtreated, it would have been controlled without the necessity of surgery. Considering theconflicting expert medical testimony, and giving deference to the jury's credibilitydeterminations, the evidence did not preponderate in defendants' favor so as to require a reversalon this ground (see Stewart v OleanMed. Group, P.C., 17 AD3d 1094, 1095-1096 [2005]; Harris v Parwez, 13 AD3d 675,677 [2004]).
Supreme Court did not improperly limit the defense's proof by curtailing the testimony of anurse who treated plaintiff at the hospital. The court ruled that the nurse could testify regardingher observations, but could not give any opinions or expert testimony based upon her 36 years ofnursing experience, because defendants did not include the nurse in their expert disclosure. Thisruling was correct. CPLR 3101 (d) (1) (i) requires disclosure of any medical professional, even atreating physician or nurse, who is expected to give expert testimony (see Chapman v State ofNew York, 189 AD2d 1075, 1075 [1993]). Because defendant did not disclose the nurse asan expert, the court appropriately permitted her to provide factual testimony but not opinions.
Upon defendants' motion after plaintiff refused to sign Health Insurance Portability andAccountability Act of 1996 authorizations, Supreme Court issued a pretrial order requiringplaintiff to sign medical authorizations permitting defense counsel to interview plaintiff's treatingphysicians, but imposing a condition that counsel provide copies of all interview notes toplaintiffs' counsel. All parties concede that, pursuant to a recent Court of Appeals decision, thiscondition was improper (see Arons vJutkowitz, 9 NY3d 393, 416 [2007]). Nevertheless, a new trial is not warranted here.There was no dispute concerning the need for nor extent of corrective surgery, nor was theresignificant treatment following plaintiff's recovery from her surgery. Under the circumstanceshere, defendants failed to establish prejudice related to the condition imposed by the court.Additionally, from the notes included in the record,[FN1]we fail to see how [*3]defendants were prevented fromconducting further interviews. Counsel could have interviewed the physicians and recorded onlyfactual information, or taken no notes at all, thereby complying with the condition and notrevealing litigation strategy. Under the circumstances, a reversal is not required based upon theimproper imposition of this condition.
By failing to object to Supreme Court's interjection into the examination of two witnesses,defendants failed to preserve that issue for our review (see Thaler & Thaler v Rourke,217 AD2d 893, 894 [1995]). In any event, the court was legitimately exercising its discretionaryauthority to control the trial (see id.). As for the challenged statements made by plaintiffs'counsel in summation, most constituted fair comment on the evidence or a response to thedefense summation.[FN2]While it is inappropriate to refer to the jury as the "conscience of the community," the context ofthat single reference reveals that there was no repeated prejudicial appeal to the jury's sympathiesand no inappropriate effort to obtain punitive damages (compare Reynolds v Burghezi,227 AD2d 941, 942 [1996]; Halftown v Triple D Leasing Corp., 89 AD2d 794, 794[1982]). Thus, no new trial is required based upon the summation (see Sweeney v Peterson, 24 AD3d984, 985 [2005]).
Some of the damages awards, even as reduced by Supreme Court, materially deviate fromreasonable compensation (see CPLR 5501 [c]). Based upon the difficulty in quantifyingawards for pain and suffering, comparable cases provide a comparison to determine whether theawards here deviate materially from reasonable compensation (see Acton v Nalley, 38 AD3d 973,976 [2007]; Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000 [1998]).Plaintiff was required to undergo surgeries to remove her uterus and both ovaries and fallopiantubes. She also had a temporary colostomy, which later had to be reversed. Severe organ failurerequired her to be placed in a medically-induced coma for one week. She experiences pain frombowel movements, which is controlled by daily medication. Plaintiff testified that she suffersemotional distress and began to experience menopause at the age of 20. This caused a decreasein, and discomfort from, sexual activity. Plaintiff had to stop estrogen-replacement therapybecause it caused a pulmonary embolism; future use of hormone therapy could cause furtherdangerous blood clots. Accordingly, the award, as reduced by the court, of $1 million for pastpain and suffering and $2 million for future pain and suffering is reasonable compensation forthese injuries (compare Allison v ErieCounty Indus. Dev. Agency, 35 AD3d 1159, 1160 [2006] [reducing award to $1 millionpast damages and $4 million future damages to young male who sustained spinal fracturesresulting in back pain, use of catheter to urinate, inability to defecate in normal manner andsexual dysfunction]; Young v Tops Mkts., 283 AD2d 923, 924-925 [2001] [reducingawards to $1 million for past damages and $2.5 million for 25 years of future damages to malewho suffered serious injuries to femur, spinal column, knee, heel and pelvis with continuous painand significant physical limitations]).[*4]
Plaintiff's husband, with the assistance of his mother andmother-in-law, cared for a toddler and a newborn while plaintiff was hospitalized and while sherecovered. He continues to perform limited household chores previously handled by plaintiff. Heprovided no testimony that his marital relations have been affected by his wife's injuries and herextremely premature menopause. Based on the proof here, the award of $250,000 for past painand suffering and $250,000 for 50 years of future pain and suffering was unreasonable(compare Gunder v Murthy, 185 AD2d 915, 916-917 [1992]; Van Syckle vPowers, 106 AD2d 711, 714-715 [1984], lv denied 64 NY2d 609 [1985]). Awards of$100,000 for past pain and suffering and $100,000 for future pain and suffering are reasonable.
Defendants' remaining arguments are without merit.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order and judgment aremodified, on the facts, without costs, by reversing so much thereof as awarded plaintiff DouglasP. Norton $250,000 for past pain and suffering and $250,000 for future pain and suffering; newtrial ordered on the issue of said damages unless, within 20 days after service of a copy of theorder herein, plaintiffs stipulate to reduce the awards to $100,000 for past pain and suffering forplaintiff Douglas P. Norton and $100,000 for future pain and suffering for plaintiff Douglas P.Norton, in which event said order and judgment, as so modified, are affirmed.
Footnote 1: Defense counsel conducted aninterview of one physician, then determined that further interviews were not practical given thecondition imposed.
Footnote 2: Although it was inappropriatefor plaintiffs' counsel to suggest reasons why plaintiff's doctors might not testify, such commentwas invited by defense counsel's statement, unsupported by the record, that plaintiff's treatingdoctors were "unwilling" to testify.