| Goldberg v Horowitz |
| 2010 NY Slip Op 03869 [73 AD3d 691] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Barbara Goldberg et al., Appellants, v Isadore Horowitz,Respondent. |
—[*1] Kelly Rode & Kelly, LLP (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Barbara D.Goldberg], of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appealfrom a judgment of the Supreme Court, Queens County (Hart, J.), entered July 30, 2008, which,upon an order of the same court dated May 20, 2008, granting the defendant's motion pursuant toCPLR 4401 for judgment as a matter of law made at the close of the evidence, is in favor of thedefendant and against them dismissing the complaint.
Ordered that, on the Court's own motion, the notice of appeal from the order dated May 20,2008, is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]);and it is further,
Ordered that the judgment is reversed, on the law, with costs, the order dated May 20, 2008,is vacated, the defendant's motion is denied, the complaint is reinstated, and a new trial isgranted.
On the morning of July 16, 2001, the late William Usdan (hereinafter the decedent) visitedhis primary care physician, the defendant, Isadore Horowitz, complaining primarily of chestcongestion and pain in his neck and left shoulder. The decedent had a history of heart diseaseand had undergone triple-bypass surgery in 1989, but he told the defendant that the pain he wasexperiencing did not remind him of his previous cardiac symptoms. At approximately 11:51a.m., the defendant, who specialized in internal medicine, performed an electrocardiogram(hereinafter EKG) upon the decedent. Although the defendant did not rule out the possibility thatthere was a cardiac cause for the decedent's shoulder pain, he sent the decedent home because hebelieved that the EKG showed no evidence of acute myocardial ischemia. Approximately 12hours later, the decedent suffered a massive heart attack. Following the July 2001 heart attack,the decedent's physical condition declined, and he died on June 22, 2004.
At trial in May 2008, the plaintiffs primarily relied upon the testimony of a physicianboard-certified in internal medicine, who opined that the July 16, 2001, EKG performed in thedefendant's office showed abnormalities indicative of ischemia, or lack of blood flow, to asegment of the heart. According to the plaintiffs' expert, this was ischemia at rest, a conditionwhich is more dangerous than exercise-induced ischemia, because it signifies that an area of theheart is losing its blood supply without any provocation. The plaintiff's expert maintained thatthe abnormalities revealed by the EKG indicated a [*2]blockageof a vein which was supplying blood to an artery of the heart. The plaintiffs' expert furthertestified that the defendant departed from good and accepted standards of medical practice byfailing to recognize ischemia at rest and to direct the decedent to a hospital emergency roomwhere various forms of medical intervention would have been available to either prevent theheart attack from occurring, or reduce the amount of muscle damage to the heart.
In contrast, the decedent's treating cardiologist, who was subpoenaed to testify on thedefendant's behalf, and the defendant's expert witness, also a cardiologist, both maintained thatto the extent that the July 16, 2001, EKG was capable of being properly interpreted, the results ofthat EKG were similar to the results of EKG tests which the decedent had undergone in the past,and did not show any changes indicative of an acute ischemic event. Although the cardiologistsdid not believe that the decedent was in need of immediate cardiac intervention at the time thesubject EKG was performed, they did not rule out the possibility that the decedent could havehad a better outcome if he had arrived in the hospital emergency room on the afternoon of July16, 2001, rather than close to midnight.
At the close of evidence, the defendant moved pursuant to CPLR 4401 for judgment as amatter of law, and the Supreme Court granted his motion, concluding that there was insufficientproof that the alleged departure in failing to send the decedent to the emergency room was aproximate cause of his heart attack and the injuries he sustained as a result of the heart attack.We reverse.
The required elements of proof in a medical malpractice action are a deviation or departurefrom good and accepted standards of medical practice, and evidence that such departureproximately caused the plaintiff's injuries (see Dockery v Sprecher, 68 AD3d 1043 [2009]; Alicea v Ligouri, 54 AD3d 784,785 [2008]; Bryan v Staten Is. Univ.Hosp., 54 AD3d 793, 794 [2008]; Flaherty v Fromberg, 46 AD3d 743, 745 [2007]). Generally, experttestimony is necessary to prove a deviation from accepted standards of medical care and toestablish proximate cause (see Dockery v Sprecher, 68 AD3d at 1045; Alicea vLigouri, 54 AD3d at 785; Bryan v Staten Is. Univ. Hosp., 54 AD3d at 794). A trialcourt may only grant judgment as a matter of law in the defendant's favor pursuant to CPLR4401 where it finds, upon the evidence presented, that there is no rational process by which thejury could find in the plaintiff's favor (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997];Dockery v Sprecher, 68 AD3d at 1045; Fellin v Sahgal, 35 AD3d 800, 801 [2006]; Velez v Goldenberg, 29 AD3d780, 781 [2006]; Johnson vJamaica Hosp. Med. Ctr., 21 AD3d 881, 882 [2005]; Wong v Tang, 2 AD3d 840[2003]). In making this evaluation, "the trial court must afford the party opposing the motionevery inference which may properly be drawn from the facts presented, and the facts must beconsidered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d at556).
Applying these principles here, we find that the testimony of the plaintiff's expert physicianprovided a rational basis upon which the jury could have found that the defendant departed fromaccepted practice in failing to recognize that the EKG performed in his office indicated that thedecedent was suffering from ischemia at rest, and warranted immediately referring the decedentto the hospital emergency room (seeJohnson v Jacobowitz, 65 AD3d 610 [2009]; Alicea v Ligouri, 54 AD3d at 785;Bryan v Staten Is. Univ. Hosp., 54 AD3d at 794; Wong v Tang, 2 AD3d 840 [2003]). Although both cardiologistswho testified on the defendant's behalf disagreed with the conclusions reached by the plaintiff'sexpert and the methodology he utilized in interpreting the subject EKG, the conflicting experttestimony presented a question of fact for the jury to resolve (see Johnson v Jacobowitz,65 AD3d at 613; Salmeri v Beth IsraelMed. Ctr.-Kings Highway Div., 39 AD3d 841, 842 [2007]; Speciale v Achari, 29 AD3d 674,675 [2006]).
Contrary to the Supreme Court's determination, the evidence presented at trial also provideda rational basis upon which the jury could have found that the defendant's alleged departure wasa proximate cause of the decedent's injuries. "In a medical malpractice action, where causation isoften a difficult issue, a plaintiff need do no more than offer sufficient evidence from which areasonable person might conclude that it was more probable than not" that the defendant'sdeviation was a substantial factor in causing the injury (Johnson v Jamaica Hosp. Med.Ctr., 21 AD3d at 883 [internal quotation marks omitted]; see Alicea v Ligouri, 54AD3d at 785; Flaherty v Fromberg, 46 AD3d at 745; Bunea v Cahaly, 37 AD3d 389, 390-391 [2007]; Holton vSprain Brook Manor Nursing Home, 253 AD2d 852 [1998]). A plaintiff's evidence ofproximate cause may be found legally sufficient even if his or her expert is unable to quantify theextent to which the defendant's act or omission decreased the plaintiff's chance of a betteroutcome or increased the injury, "as long as evidence is presented from which the jury may inferthat the [*3]defendant's conduct diminished the plaintiff's chanceof a better outcome or increased [the] injury" (Alicea v Ligouri, 54 AD3d at 786[internal quotation marks omitted]; see Flaherty v Fromberg, 46 AD3d at 745; Jumpv Facelle, 275 AD2d 345, 346 [2000]). Here, the evidence presented at trial was sufficient tohave allowed the jury to infer that the decedent would have had a better outcome if the defendanthad referred him to the hospital emergency room on the afternoon of July 16, 2001, and the courtthus erred in granting the defendant's motion for judgment as a matter of law on this basis(see Dockery v Sprecher, 68 AD3d at 1046; Alicea v Ligouri, 54 AD3d at 786;Flaherty v Fromberg, 46 AD3d at 745; Jump v Facelle, 275 AD2d at 346).Skelos, J.P., Eng, Belen and Austin, JJ., concur.