| Schreiber v University of Rochester Med. Ctr. |
| 2011 NY Slip Op 07093 [88 AD3d 1262] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| Dean Schreiber, Appellant, v University of Rochester MedicalCenter, Respondent. |
—[*1] Osborn, Reed & Burke, LLP, Rochester (Thomas C. Burke of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredJuly 8, 2010 in a medical malpractice action. The judgment, among other things, dismissedplaintiff's complaint on the merits.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this medical malpractice action seeking damages for askin ulceration and resulting leg injuries that he sustained after undergoing right ankle fusionsurgery performed by defendant's "agents, servants and/or employees" (hereafter, agents). After atrial, the jury rendered a verdict in favor of defendant, finding that defendant was negligent butthat its negligence was not a cause of the injuries. Supreme Court denied plaintiff's post-trialmotion seeking, inter alia, to set aside the verdict as against the weight of the evidence andinconsistent. Plaintiff appeals from the judgment entered on that verdict. We affirm.
To the extent that plaintiff contends that the verdict is inconsistent, plaintiff failed to preservethat contention for our review inasmuch as he failed to raise it before the jury was discharged(see Barry v Manglass, 55 NY2d 803, 806 [1981], rearg denied 55 NY2d 1039[1982]; Krieger v McDonald's Rest. ofN.Y., Inc., 79 AD3d 1827, 1828 [2010], lv dismissed 17 NY3d 734 [2011]). Tothe extent that plaintiff contends that the verdict is against the weight of the evidence, however,he preserved that contention by moving to set aside the verdict on that ground (see Skowronski v Mordino, 4 AD3d782 [2004]). We nevertheless reject that contention. A jury verdict will be set aside asagainst the weight of the evidence only when the evidence at trial "so preponderated in favor ofthe [losing party] that the verdict could not have been reached on any fair interpretation of theevidence" (id. at 782-783). "A verdict finding that a defendant was negligent but thatsuch negligence was not a proximate cause of the [plaintiff's injuries] is against the weight of theevidence only when [those] issues are so inextricably interwoven as to make it logicallyimpossible to find negligence without also finding proximate cause" (Santillo v Thompson, 71 AD3d1587, 1588-1589 [2010] [internal quotation marks omitted]). Where a verdict " 'can be [*2]reconciled with a reasonable view of the evidence, the successfulparty is entitled to the presumption that the jury adopted that view' " (Kunsman v Baroody, 60 AD3d1369, 1370 [2009]).
We conclude that there is a fair interpretation of the evidence pursuant to which the jurycould have found that defendant's agents acted negligently but did not cause the postsurgery leginjuries alleged by plaintiff. Plaintiff presented two theories of liability at trial. First, plaintiffalleged that defendant's agents negligently constructed and placed his leg in a cast and, second,he alleged that defendant's agents acted negligently in failing to treat him after the surgery, whenhe called to report that he was experiencing pain in his right leg. With respect to the theory ofnegligent construction and placement of the cast, testimony was presented suggesting thatulcerations can occur even with proper cast placement and that plaintiff's ulceration resulted fromthe surgical realignment of his ankle rather than from the cast. In light of that testimony, the juryreasonably could have found that, even in the event that defendant's agents were negligent inconstructing and placing the cast, such negligence was not a substantial factor in causingplaintiff's skin ulceration and resulting injuries. With respect to the theory that defendant's agentsacted negligently in failing to treat plaintiff on a certain occasion following his surgery, plaintiffoffered no evidence establishing that the delay in treatment deprived him of the opportunity for abetter outcome with respect to the ulceration (see Poblocki v Todoro, 49 AD3d 1239 [2008]). Moreover,defendant's wound healing expert testified that treatment of plaintiff's ulceration on the date inquestion would not have prevented his subsequent leg injuries.
Finally, we note that plaintiff's reliance on the doctrine that a defendant takes a plaintiff as heor she finds that plaintiff is misplaced (see e.g. Bartolone v Jeckovich, 103 AD2d 632,635 [1984]). That doctrine stands only for the proposition that a defendant is liable for all of thedamages that flow from a proven act of negligence, even in the event that some of those damagesare the result of a susceptibility unique to the plaintiff (see id.). Notwithstandingplaintiff's preexisting condition, plaintiff was still required to prove that the negligence ofdefendant's agents caused his injuries. Present—Centra, J.P., Peradotto, Carni, Green andGorski, JJ.