| Elias v Bash |
| 2008 NY Slip Op 06587 [54 AD3d 354] |
| August 12, 2008 |
| Appellate Division, Second Department |
| John Elias, Respondent, v Ronald L. Bash et al.,Defendants, and Jyoti P. Ganguly et al., Appellants. |
—[*1] Pegalis & Erickson, LLC, Lake Success, N.Y. (Steven E. Pegalis and AnnamarieBondi-Stoddard of counsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, etc., thedefendants Jyoti P. Ganguly and Brian S. Geller appeal from (1) an order of the Supreme Court,Suffolk County (Baisley, J.), dated July 13, 2006, which denied their motion pursuant to CPLR4404 to set aside, as against the weight of the evidence, a jury verdict on the issue of liabilityfinding Jyoti P. Ganguly 2.5% at fault and Brian S. Geller 10% at fault for the injuries sustainedby the plaintiff and the plaintiff's decedent or, in the alternative, to set aside, as excessive, a juryverdict on the issue of damages finding that the plaintiff and the plaintiff's decedent sustaineddamages in the sum of $13,110,000, and for leave to renew their prior motion pursuant to CPLR4401 for judgment as a matter of law at the close of the plaintiff's case, and (2) a judgment of thesame court entered December 3, 2007, which, upon the jury verdicts, and upon the order datedJuly 13, 2006, is in favor of the plaintiffs and against them in the total sums of $437,385.35 and$1,727,686.67, respectively.
Ordered that the appeal from the order dated July 13, 2006 is dismissed; and it is further,[*2]
Ordered that the judgment is reversed, on the law, thatbranch of the motion of the defendants Jyoti P. Ganguly and Brian S. Geller which was for leaveto renew their motion pursuant to CPLR 4401 for judgment as a matter of law at the close of theplaintiff's case is granted, upon renewal, the motion pursuant to CPLR 4401 for judgment as amatter of law is granted, the complaint is dismissed insofar as asserted against those defendants,the action is severed against the remaining defendants, and the order dated July 13, 2006 ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The appeal from the intermediate order dated July 13, 2006 must be dismissed because theright of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
On January 17, 1999 the 36-year-old decedent Sabine Elias gave birth to her fourth child bycesarean section. About an hour after the delivery, the decedent experienced a fainting episode,and a drop in blood pressure. In an effort to determine the cause of these symptoms, thedecedent's attending physician called in several consulting physicians, including a cardiologist,the appellant Jyoti P. Ganguly. After performing an echocardiogram and electrocardiogram onthe afternoon of January 17, 1999, Ganguly found no evidence of any acute cardiovascularproblem, and informed the attending physician that he had ruled out a heart attack. He alsoadvised the attending physician that she should watch for possible bleeding due to the decedent'slow blood pressure. Later in the day, when Ganguly returned to see the decedent again, heindicated in his consultation note that she might be experiencing pelvic bleeding, andrecommended that a CT scan be performed. The attending physician acknowledged that Gangulytold her, on January 17, 1999, that the issue of potential bleeding must not be left unresolved, andthat she understood that leaving the issue unresolved was a matter of life and death.
Ganguly next saw the decedent on the evening of January 18, 1999 and noted that she wasexperiencing tachycardia, or fast heartbeat. Although the administration of medication brieflybrought the decedent's heartbeat back to normal, its rate soon rose again, leading Ganguly toconclude that the underlying cause of the irregular heartbeat had not been resolved. Gangulywrote a note in the decedent 's chart at 9:25 p.m. on January 18, 1999 indicating that thepossibility of bleeding was growing stronger, and should be reassessed by the attendingphysician. In addition, before leaving the decedent at 11:50 p.m. that night, Ganguly wrote a finalnote in her chart stating that the only remaining possibility appeared to be intra-abdominalbleeding. The decedent died at 9:00 p.m. on January 19, 1999 when she went into cardiac arrest,as Ganguly's partner, the appellant Brian S. Geller, was in the process of inserting a Swan-Ganzcatheter line to measure the pressure in her pulmonary artery. A pathologist who performed anautopsy determined the causes of death to be an amniotic fluid embolism producing disseminatedintravascular coagulation, and massive bleeding in the arteries supplying the rectus muscle.
At the close of the plaintiff's case, Ganguly and Geller together moved for judgment as amatter of law pursuant to CPLR 4401. The court reserved decision. At the conclusion of theliability phase of the trial, the jury returned a verdict finding Ganguly 2.5% at fault and Geller10% at fault for the decedent's death. The jury apportioned the balance of fault among otherphysicians involved in the decedent's care, including the attending physician, who was found50% at fault. Ganguly and Geller thereafter moved, inter alia, for leave to renew their motionpursuant to CPLR 4401 for judgment as a matter of law. The trial court denied the motion. Wereverse.[*3]
The required elements of proof in a medical malpracticeaction are a deviation or departure from good and accepted standards of medical practice, andevidence that such departure was a proximate cause of the injury (see Wicksman v Nassau County HealthCare Corp., 27 AD3d 644 [2006]; Perez v St. John's Episcopal Hosp. S. Shore, 19 AD3d 389, 390[2005]; Abrams v Ho, 3 AD3d544, 545 [2004]; Prestia v Mathur, 293 AD2d 729, 730 [2002]). A trial court maydirect judgment in a defendant's favor pursuant to CPLR 4401 where, affording the plaintiffevery favorable inference from the evidence submitted, there is no rational process by which thejury could find in the plaintiff's favor (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997];Godlewska v Niznikiewicz, 8 AD3d430, 431 [2004]; Prestia v Mathur, 293 AD2d at 730).
The evidence presented at trial demonstrated that Ganguly fulfilled his duty as a consultingcardiologist by reporting his findings to the attending physician, and making appropriatesuggestions for follow-up treatment. Although the plaintiff's expert opined that Ganguly shouldhave taken additional steps to ensure that the bleeding was resolved either by exploratory surgeryor embolization on January 17, 1999, it is undisputed that Ganguly clearly and repeatedly advisedthe attending physician, who was an obstetrician, of the necessity of checking for intra-abdominalbleeding. Moreover, it is also undisputed that Ganguly' s own practice was limited to cardiology,and that he did not practice obstetrics, gynecology, or surgery. Under these circumstances, thereis no rational basis to support a jury finding that Ganguly departed from good and acceptedpractice by failing to take steps, beyond the normal scope of his role as a consulting cardiologistand outside of his area of specialization, to resolve a suspected post-surgical bleed (seeAlvarez v Prospect Hosp., 68 NY2d 320, 323-325 [1986]; Aharonowicz v Huntington Hosp., 22AD3d 615 [2005]; Boone v NorthShore Univ. Hosp. at Forest Hills, 12 AD3d 338, 339 [2004]; Yasin v ManhattanEye, Ear & Throat Hosp., 254 AD2d 281 [1998]; Al Malki v Krieger, 213 AD2d331, 333-334 [1995]).
Furthermore, there is no rational process by which the jury could have found in favor of theplaintiff and against Geller, whose only contact with the decedent involved the insertion of aSwan-Ganz catheter line moments before her death. While the plaintiff's expert testified that itwas a departure from good and accepted practice for Geller to place a Swan-Ganz catheter intothe decedent, he did not opine that the insertion of the catheter was a proximate cause of thedecedent's death. Moreover, the pathologist who performed the autopsy concluded that theplacement of the catheter did not contribute to the decedent's death, and the defense experttestified that nothing that Geller did or did not do after Ganguly signed off duty on the morningof January 19, 1999 "could in any way have changed the course of events." Accordingly, therewas no evidence that any alleged departure by Geller was a proximate cause of the decedent'sdeath (see Wicksman v Nassau County Health Care Corp., 27 AD3d at 645;Godlewska v Niznikiewicz, 8 AD3d at 431; Abrams v Ho, 3 AD3d at 545).[*4]
In light of our determination, we need not reach theappellants' remaining contentions. Rivera, J.P., Skelos, Dickerson and Eng, JJ., concur.