| Mangaroo v Beckman |
| 2010 NY Slip Op 05736 [74 AD3d 1293] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Charmaine Mangaroo, Appellant, v James Beckman et al.,Respondents. |
—[*1]
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1)from a judgment of the Supreme Court, Queens County (Orlikoff-Flug, J.), entered June 27,2008, which, upon a jury verdict, is in favor of the defendants and against her, dismissing thecomplaint, (2) from an order of the same court entered September 10, 2008, which denied hermotion, among other things, to set aside the jury verdict pursuant to CPLR 4404 as contrary toweight of the evidence and for a new trial, and for leave to amend the complaint, and (3), aslimited by her brief, from so much of an order of the same court dated November 18, 2008, as,upon reargument, adhered to the prior determination in the order entered September 10, 2008.
Ordered that the appeal from the order entered September 10, 2008 is dismissed, as thatorder was superseded by the order dated November 18, 2008; and it is further,
Ordered that the judgment entered June 27, 2008 is affirmed; and it is further,
Ordered that the order dated November 18, 2008 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff contends that the Supreme Court should have set aside, as contrary to theweight of the evidence, the jury verdict finding that the defendants did not depart from theaccepted standard of care. However, "[w]here both the plaintiff and the defendants presentedparty . . . and expert testimony in support of their respective positions, it was withinthe province of the jury to determine the credibility of those witnesses" (Johnson vJacobowitz, 65 AD3d 610, 613 [2009]). Under the circumstances of this case, the juryverdict on this issue was not against the weight of the evidence (see Gerdvil v Rizzo, 67AD3d 637 [2009]; Johnson v Jacobowitz, 65 AD3d at 613; Landau v Rappaport,306 AD2d 446 [2003]; see also [*2]Perez v St. VincentsHosp. & Med. Ctr. of N.Y., 66 AD3d 663, 664 [2009]).
Further, contrary to the plaintiff's contention, the jury verdict as to the cause of action torecover damages based on lack of informed consent was not contrary to the weight of theevidence. "To establish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, plaintiff must prove (1) that the person providing the professional treatmentfailed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeablerisks associated with the treatment, and the alternatives, that a reasonable medical practitionerwould have disclosed in the same circumstances, (2) that a reasonably prudent patient in thesame position would not have undergone the treatment if he or she had been fully informed, and(3) that the lack of informed consent is a proximate cause of the injury" (Foote vRajadhyax, 268 AD2d 745, 745 [2000] [citations omitted]; see Spano v Bertocci,299 AD2d 335, 337-338 [2002]; Public Health Law § 2805-d). Under the circumstancesherein, the jury's finding that the defendant James Beckman obtained the plaintiff's informedconsent to the anesthesia procedures was not contrary to the weight of the evidence (seeManning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 521-522 [2004]; Bobek vCrystal, 291 AD2d 521, 523 [2002]).
The Supreme Court properly denied the plaintiff's request for a jury charge and to modify aquestion on the jury verdict sheet regarding the defendants' purported violation of certainrecord-keeping regulations and rules. The evidence at trial showed that any such violations werenot causally related to the injuries (see Anderson v House of Good Samaritan Hosp., 44AD3d 135, 142-143 [2007]; Gong v Gjoni, 6 AD3d 896, 897-898 [2004]). The plaintifffailed to preserve for appellate review her challenge to the jury verdict sheet question regardingthe alleged departures from the standard of care (see Schlecter v Abbondadello, 5 AD3d582 [2004]).
The plaintiff's remaining challenge to the jury charge is not preserved for appellate review(see Schlecter v Abbondadello, 5 AD3d 582 [2004]).
The Supreme Court properly denied so much of the plaintiff's posttrial motion as soughtleave to amend the complaint (see CPLR 3025 [c]; Matter of Laplante vLaplante, 70 AD3d 1039 [2010]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Eng, Hall and Lott, JJ.,concur.