| Semel v Guzman |
| 2011 NY Slip Op 04228 [84 AD3d 1054] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Ellen Semel et al., Respondents, v Anamaria Guzman etal., Appellants. |
—[*1] Beck & Strauss, PLLC, Uniondale, N.Y. (Leland Stuart Beck of counsel), forrespondents.
In an action to recover damages for medical malpractice, the defendants appeal from ajudgment of the Supreme Court, Kings County (Weston, J.), entered December 16, 2009, which,upon a jury verdict finding that the plaintiffs' decedent sustained damages in the principal sumsof $4,500,000 for past pain and suffering and $500,000 for past medical expenses, upon an orderof the same court dated December 7, 2009, denying those branches of their motion pursuant toCPLR 4404 (a) which were to set aside the jury verdict on the issue of liability and for judgmentas a matter of law, or to set aside the jury verdict as contrary to the weight of the evidence or inthe interest of justice and for a new trial, and granting that branch of their motion pursuant toCPLR 4404 (a) which was to set aside the damages awards as excessive only to the extent ofordering a new trial unless the plaintiffs stipulated to reduce the damages award for past pain andsuffering from the principal sum of $4,500,000 to the principal sum of $2,000,000 and to reducethe damages award for past medical expenses from the principal sum of $500,000 to the principalsum of $403,308.81, and upon the plaintiffs' stipulation to so reduce those damage awards, is infavor of the plaintiffs and against them in the principal sum of $2,403,308.81.
Ordered that the judgment is affirmed, with costs.
A verdict is legally insufficient when "there is simply no valid line of reasoning andpermissible inferences which could possibly lead rational [people] to the conclusion reached bythe jury on the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; see Lang v Newman, 12NY3d 868, 870 [2009]; Tapia vDattco, Inc., 32 AD3d 842 [2006]). A verdict is contrary to the weight of the evidencewhen " 'the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not havebeen reached on any fair interpretation of the evidence' " (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253,1255 [2008], quoting Biello v AlbanyMem. Hosp., 49 AD3d 1036, 1037 [2008] [internal quotation marks omitted]).
To establish a prima facie case of liability in a medical malpractice action, a plaintiff mustprove that the defendant deviated from accepted standards of medical practice and that suchdeviation [*2]proximately caused his injuries (see Thompson v Orner, 36 AD3d791 [2007]; Anderson v Lamaute, 306 AD2d 232, 233 [2003]; Prete vRafla-Demetrious, 224 AD2d 674, 675 [1996]). Establishing proximate cause in medicalmalpractice cases requires a plaintiff to present sufficient medical evidence from which areasonable person might conclude that it was more probable than not that the defendant'sdeparture was a substantial factor in causing the plaintiff's injury (see Johnson v Jamaica Hosp. Med.Ctr., 21 AD3d 881, 883 [2005]; Goldberg v Horowitz, 73 AD3d 691 [2010]). "Generally, experttestimony is necessary to prove a deviation from accepted standards of medical care and toestablish proximate cause" (Goldberg v Horowitz, 73 AD3d at 693; see Dockery v Sprecher, 68 AD3d1043, 1045 [2009]; Texter vMiddletown Dialysis Ctr., Inc., 22 AD3d 831 [2005]). "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 defendant's conduct diminished the plaintiff's chance of a better outcome or increased[the] injury' " (Goldberg v Horowitz, 73 AD3d at 694, quoting Alicea v Ligouri, 54 AD3d 784,786 [2008]).
Here, there was legally sufficient evidence to support the jury's findings that the defendantAnamaria Guzman deviated from accepted standards of medical practice in failing to read notesin the plaintiffs' decedent's chart and in failing to communicate to the plaintiffs' decedent'scaregivers, postoperatively, that medical instruments had been placed into the plaintiffs'decedent's esophagus, thereby delaying diagnosis of the esophageal perforation, and that suchdeviation proximately caused her injuries (see Cohen v Hallmark Cards, 45 NY2d at 499;Nicastro v Park, 113 AD2d 129, 132 [1985]; see also Fellin v Sahgal, 35 AD3d 800 [2006]).
Moreover, the verdict was not contrary to the weight of the evidence. Where both theplaintiffs and the defendants presented expert testimony in support of their respective positions, itwas the province of the jury to determine the experts' credibility (see Cohen v HallmarkCards, 45 NY2d at 498-499; Fellinv Sahgal, 35 AD3d 800 [2006]; Texter v Middletown Dialysis Ctr., Inc., 22AD3d at 832; Wong v Tang, 2AD3d 840 [2003]; Velez vPolicastro, 1 AD3d 429, 431 [2003]; Nicastro v Park, 113 AD2d at 133-134).
The damages award for past pain and suffering, as reduced and stipulated to by the plaintiffs(see Al Malki v Krieger, 213 AD2d 331 [1995]; Krueger v Frisenda, 218 AD2d685 [1995]; see also Jump v Facelle, 292 AD2d 501 [2002]), and the damages award forpast medical expenses, as reduced and stipulated to by the plaintiffs (see Tonaj v ABC Carpet Co., Inc., 43AD3d 337, 339-340 [2007]; Dell vPort Auth. of N.Y. & N.J., 24 AD3d 155 [2005]; Brewster v Prince Apts., 264AD2d 611 [1999]), do not deviate materially from what would be reasonable compensation.Covello, J.P., Chambers, Lott and Cohen, JJ., concur.