| Backus v Kaleida Health |
| 2012 NY Slip Op 00554 [91 AD3d 1284] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| Darnell Backus, Respondent, v Kaleida Health, DoingBusiness as Buffalo General Hospital, et al., Appellants, et al.,Defendant. |
Appeals from a judgment of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredMarch 10, 2011 in a medical malpractice action. The judgment awarded plaintiff money damagesupon a jury verdict. It is hereby ordered that the judgment so appealed from is unanimously modified on thelaw by granting the post-trial motions in part and setting aside the verdict with respect to theaward of damages for future lost earnings and past and future pain and suffering only and asmodified the judgment is affirmed without costs, and a new trial is granted on those elements ofdamages only unless plaintiff, within 20 days of service of a copy of the order of this Court withnotice of entry, stipulates to reduce the award of damages for future lost earnings to $1,133,922,for past pain and suffering to $250,000, and for future pain and suffering to $750,000, in whichevent the judgment is modified accordingly and as modified the judgment is affirmed withoutcosts. Memorandum: Plaintiff commenced this medical malpractice action seeking damages forinjuries he sustained during a donor kidney transplant operation performed at defendant KaleidaHealth, doing business as Buffalo General Hospital (Hospital). Defendant Kenneth Beasley,M.D. was the physician primarily responsible for plaintiff's surgery, and defendant Mark Laftavi,M.D. was the physician primarily responsible for transplanting the kidney into the recipient,plaintiff's mother, but he assisted at various times in plaintiff's surgery as well. Following a trial,the jury returned a verdict finding that both Dr. Beasley and Dr. Laftavi were negligent andapportioning fault 80% to Dr. Beasley and 20% to Dr. Laftavi. The jury awarded plaintiffdamages totaling $4,145,000, including, as relevant to this appeal, $2,000,000 for future lostearnings, $500,000 for past pain and suffering, and $1,250,000 for future pain and suffering. TheHospital and Dr. Laftavi, who have taken an appeal separate from that of Dr. Beasley, made apost-trial motion seeking three types of alternative relief, including a reduction in the amount ofdamages awarded, and Dr. Beasley made his own post-trial motion also seeking that relief in thealternative. We reject the contention of defendants-appellants (defendants) that Supreme Court erredin charging the doctrine of res ipsa loquitur to the jury. We note at the outset that such a charge isappropriate where a plaintiff establishes three elements, i.e., "the event must be of a kind thatordinarily does not occur in the absence of someone's negligence; . . . it must be caused by anagency or instrumentality within the exclusive control of the defendant; and . . . it must not havebeen due to any voluntary action or contribution on the part of the plaintiff" (Kambat v St.Francis Hosp., 89 NY2d 489, 494 [1997]). As a result of the operation to harvest his right kidney,plaintiff sustained injuries to his cervical spine and rhabdomyolysis of muscles on the left side ofhis body. The operation, which all of the experts agreed normally should be only two to threehours in duration, took over six hours to complete. During most of that time, plaintiff waspositioned on his left side with both his head and lower body angled downward. We haverecognized that generally where, as here, "an unexplained injury occurs in an area remote fromthe operation while the patient is anesthetized, the doctrine of [res ipsa loquitur] is available toestablish a prima facie case" (Fogal v Genesee Hosp., 41 AD2d 468, 475 [1973]; see Ceresa vKarakousis, 210 AD2d 884 [1994]). Defendants contend that the res ipsa doctrine is not applicable here because plaintiff'sinjuries were not "caused by an agency or instrumentality within the exclusive control of [either]defendant" (Kambat, 89 NY2d at 494). Specifically, Dr. Beasley contends that theanesthesiologist, whose motion for a directed verdict at the close of proof was granted, also hadresponsibility for plaintiff's positioning, while Dr. Laftavi contends that he had no control overplaintiff's positioning. There was evidence, however, that both plaintiff's positioning, which Dr.Beasley primarily controlled, and the length of the surgery, for which Dr. Laftavi was at leastpartly responsible, contributed to plaintiff's injuries, and we have held that, "[i]n a multipledefendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is notrequired to identify the negligent actor" (Schmidt v Buffalo Gen. Hosp., 278 AD2d 827, 828[2000], lv denied 96 NY2d 710 [2001]). Contrary to defendants' further contention, the jury was entitled to credit the testimony ofplaintiff's expert establishing that the injuries sustained by plaintiff were "of a kind that ordinarilydo[ ] not occur in the absence of someone's negligence" (Kambat, 89 NY2d at 494; see Ceresa,210 AD2d at 884). A plaintiff need not conclusively eliminate the possibility of all other causesof the injuries to be entitled to a charge on the doctrine of res ipsa loquitur. Rather, such a chargeis appropriate if the evidence supporting the three requisite elements affords a rational basis forconcluding that " 'it is more likely than not' that the injur[ies were] caused by defendant[s']negligence" (Kambat, 89 NY2d at 494). The Hospital and Dr. Laftavi further contend that the verdict against Dr. Laftavi wasbased on legally insufficient evidence and against the weight of the evidence because there wasno proof that he unreasonably delayed the surgery. We reject that contention. There iscircumstantial evidence in the record from which the jury could have rationally found that Dr.Laftavi was responsible for delaying the surgery for a substantial period of time, and the evidencedoes not "preponderate[ ] so greatly in [his] favor that the jury could not have reached itsconclusion on any fair interpretation of the evidence" (Stewart v Olean Med. Group, P.C., 17AD3d 1094, 1095-1096 [2005] [internal quotation marks omitted]). There was testimony thatHeparin, which was administered to plaintiff more than two hours before his kidney washarvested, normally would not be administered until the kidney was ready for removal. While Dr.Beasley testified that he administered Heparin to plaintiff on two occasions during the surgery,the surgical notes do not reflect as much. Moreover, both physicians were evasive in theirtestimony concerning the amount of time it took for Dr. Laftavi to arrive at the operating room toharvest plaintiff's kidney, and it was within the jury's province to discredit their testimony thatthere was no inordinate delay (see id. at 1096). We reject defendants' contention that the remarks of plaintiff's counsel on summationrequire a new trial. Even assuming, arguendo, that such comments were improper, we concludethat they were not "so flagrant or excessive" as to warrant a new trial (Winiarski v Harris [appealNo. 2], 78 AD3d 1556, 1558 [internal quotation marks omitted]). Defendants' further contentionthat the verdict is inconsistent is not preserved for our review (see Potter v Jay E. Potter Lbr. Co.,Inc., 71 AD3d 1565, 1567 [2010]). We agree with defendants, however, that the jury's awards of damages for future lostearnings and past and future pain and suffering deviate materially from what would be reasonablecompensation (see CPLR 5501 [c]). Based on the evidence presented at trial, we conclude that$1,133,922 for future lost earnings, $250,000 for past pain and suffering, and $750,000 for futurepain and suffering are the maximum amounts the jury could have awarded. We therefore modifythe judgment accordingly, and we grant a new trial on damages for future lost earnings and pastand future pain and suffering only unless plaintiff, within 20 days of service of a copy of theorder of this Court with notice of entry, stipulates to reduce the award of damages for future lostearnings to $1,133,922, for past pain and suffering to $250,000, and for future pain and sufferingto $750,000, in which event the judgment is modified accordingly. Present Scudder, P.J., Smith,Centra, Lindley and Gorski, JJ.