| Ernst v Khuri |
| 2011 NY Slip Op 07341 [88 AD3d 1137] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Jerri L. Ernst, Respondent, v Suheil M. Khuri et al.,Appellants. |
—[*1] Napierski, Vandenburgh, Napierski & O'Conner, L.L.P., Albany (Shawn T. Nash of counsel),for appellants. Horigan, Horigan & Lombardo, Amsterdam (Peter M. Califano of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Sise, J.), entered October 15, 2010 inFulton County, which granted plaintiff's motion to set aside a verdict in favor of defendants andordered a new trial.
Plaintiff commenced this medical malpractice action to recover damages for injuries sheallegedly sustained as a result of defendants' treatment following an injury to her foot. A jury trialwas held and, after hearing the proof, the jury found that defendant Suheil M. Khuri wasnegligent, but that his negligence was not a proximate cause of plaintiff's increased pain,suffering and other injuries. Plaintiff moved to, among other things, set aside the verdict asinconsistent and against the weight of the evidence. Supreme Court granted the motion anddirected that the matter be restored to the trial calendar. Defendants appeal and we affirm.
Much of the testimony at trial regarding the underlying events was uncontroverted. Plaintiffinjured her foot in April 2004 and was initially treated at a hospital emergency room. When herpain persisted, her primary care physician referred her to defendant Northeast Orthopaedicswhere she saw Khuri, an orthopedist. Khuri evaluated plaintiff on May 6, 2004. After examiningplaintiff and reviewing X rays of her foot and ankle, he diagnosed her with a sprain. Khuriprovided plaintiff with a protective boot to wear and advised her to bear weight on her foot.According to his notes, he instructed her to return for further evaluation if she did not improvewithin three to four weeks. Plaintiff testified, however, that the only instructions she receivedwere those set forth on her discharge papers, directing her to schedule an appointment [*2]should her condition worsen or remain the same,[FN*]without any time frame given. Inasmuch as Khuri had no independent recollection of treatingplaintiff, he was unable to dispute this testimony. Furthermore, Khuri admitted that he couldhave directed plaintiff to schedule another visit immediately, but decided to leave it up to her.
During the next few months, while plaintiff was off from work as a teacher, she wore theprotective boot, which enabled her to walk, and her condition began to improve to the pointwhere she was able to discard the boot and use normal footwear. However, when she returned towork in the fall of 2004, she began to experience increased pain in her foot, which becamesignificantly worse by early 2005. As a result of her increased discomfort, plaintiff attempted toschedule an appointment with Khuri, but was told that the next available opening was inMay—approximately one year after her initial visit. Plaintiff returned to NortheastOrthopaedics in May 2005, at which time further X rays revealed that her foot was fractured,prompting Khuri to recommend that plaintiff be seen by David Dixon, another doctor affiliatedwith Northeast Orthopaedics. When Dixon saw plaintiff on May 27, 2005, he recommendedsurgery to repair the fracture and alleviate arthritic changes that had developed as a result of thefracture. Although the surgery was initially scheduled for the following August, it was postponeddue to an unanticipated adverse medical reaction suffered by plaintiff in connection with anintervening elective surgery. Several months passed before plaintiff was sufficiently medicallystable to proceed with the foot surgery, which was ultimately performed in March 2006. Plaintifftestified that she is unable to walk long distances and still takes medication to relieve the pain inher foot.
To set aside this jury verdict in defendants' favor, "the evidence [must] so preponderate[ ] infavor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation ofthe evidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotationmarks and citations omitted]; accordMatter of Grancaric, 68 AD3d 1279, 1280 [2009]; see CPLR 4404 [a]; Harris v Parwez, 13 AD3d 675,678 [2004]). The determination whether to grant a new trial is discretionary and "is vested in thetrial court 'predicated on the assumption that the [j]udge who presides at trial is in the bestposition to evaluate errors therein' " (Zimmer v Chemung County Performing Arts, 130AD2d 857, 858 [1987], quoting Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39NY2d 376, 381 [1976]; accord Straub v Yalamanchili, 58 AD3d 1050, 1051 [2009]).Absent a clear abuse of discretion, we will not disturb the trial court's determination (seeStraub v Yalamanchili, 58 AD3d at 1051; Packard v State Farm Gen. Ins. Co., 268AD2d 821, 822 [2000]).
Inasmuch as neither party has challenged the jury's finding that Khuri was negligent indiagnosing and treating plaintiff in May 2004, the focus of this appeal centers on the jury'sdetermination that such negligence was not the proximate cause of any increased pain, sufferingor injuries to plaintiff. In that regard, both Dixon and Khuri conceded at trial that plaintiff'ssurgery would not have been as extensive if the proper diagnosis had been made earlier. In fact,Khuri testified that, based upon his belief that she had suffered a sprain, he instructed plaintiff tobear weight on her foot, but that the proper remedy for her actual injuries would have beensurgery or a cast. Khuri also conceded that the type of injury sustained by plaintiff worsens whenthe affected area is not immobilized. Dixon further testified that plaintiff had developed a [*3]painful arthritic condition in her foot due to it being out ofalignment for an extended period of time. In addition, plaintiff's expert opined that, because ofthe delay in treatment, the surgery was significantly more involved than it would otherwise havebeen, requiring three additional components. He also opined that earlier treatment would haveproduced a different result, including less pain. We are unpersuaded by defendants' contentionthat a reasonable interpretation of the evidence could lead the jury to conclude that plaintiff wasthe sole cause of the delay in receiving the proper treatment. Notably, although defendants' experttestified that the delay in diagnosing plaintiff did not affect her surgery, he did not controvert theevidence that the delay caused her additional pain and suffering or opine that her actionscontributed to the amplification of her injuries.
In view of the foregoing, we discern no abuse of Supreme Court's discretion in determiningthat the evidence with regard to proximate cause so preponderated in plaintiff's favor that the jurycould not have reached its conclusion based on any fair interpretation of it. Accordingly, wedecline to disturb Supreme Court's determination to set aside the verdict and order a new trial(see Lolik v Big V Supermarkets, 86 NY2d at 746; Matter of Grancaric, 68 AD3dat 1280; compare Wolfe v St. Clare'sHosp. of Schenectady, 57 AD3d 1124, 1126 [2008]; Warnke v Warner-Lambert Co., 21 AD3d 654, 657 [2005]).
Defendants' remaining contentions have been considered and are unavailing.
Peters, J.P., Spain, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: In fact, the discharge paper wasa preprinted form on which a box was checked indicating that plaintiff should make a returnappointment if "problem returns/worsens."