| Bailey v Brookdale Univ. Hosp. & Med. Ctr. |
| 2012 NY Slip Op 05900 [98 AD3d 545] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Evadine Bailey et al., Individually and as Administrators of theEstate of Patrick Bailey, Deceased, Appellants, v Brookdale University Hospital andMedical Center, Respondent. |
—[*1] Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Guy A. Lawrence of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death and medical malpractice, theplaintiffs appeal from a judgment of the Supreme Court, Kings County (Jackson, J.), enteredDecember 29, 2010, which, upon a jury verdict, is in favor of the defendant and against themdismissing the complaint.
Ordered that the judgment is affirmed, with costs.
Just after midnight on November 1, 1997, emergency room personnel at the defendantBrookdale University Hospital and Medical Center (hereinafter the Hospital) began treating theplaintiffs' decedent for a gunshot wound to the inner right thigh. An autopsy report later revealedthat in addition to the thigh wound, which lacerated the decedent's right femoral artery, thedecedent had also suffered a second, untreated gunshot wound to his right buttock. The plaintiffscommenced this action to recover damages for, inter alia, wrongful death and medicalmalpractice, and the matter proceeded to trial.
At trial, the plaintiffs' expert witness testified that the Hospital's physicians departed fromaccepted medical practice by failing to examine the decedent's body for additional gunshotwounds, since the proper procedure calls for removing the patient's clothes and examining theentire body for additional wounds. In contrast, the defendants' expert witnesses testified that,although the normal standard of care is to search for additional gunshot wounds, it would havebeen a departure from accepted practices to perform such a search where, as here, the patient isbleeding out of a severed artery since taking the time to remove the decedent's clothes and searchfor additional gunshot wounds would have prevented the Hospital's doctors from applyingpressure to the gunshot [*2]wound to the thigh, which would haveresulted in the decedent's death.
The jury found that the Hospital did not depart from accepted medical practice by notdiscovering and treating the decedent's gunshot wound to the buttock. The Supreme Courtaccordingly entered judgment in favor of the Hospital and against the plaintiffs. We affirm.
In order to set aside a jury verdict upon the ground that it is not supported by legallysufficient evidence, there must be "no valid line of reasoning and permissible inferences whichcould possibly lead rational [people] to the conclusion reached by the jury on the basis of theevidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; seeNicastro v Park, 113 AD2d 129, 132 [1985]). Here, contrary to the plaintiffs' contention, theHospital presented legally sufficient evidence that its personnel did not depart from acceptedmedical practice in their treatment of the plaintiffs' decedent.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached the verdict by any fair interpretation of the evidence (see Grassi vUlrich, 87 NY2d 954, 956 [1996]; Lolik v Big V Supermarkets, 86 NY2d 744, 746[1995]; Jean-Louis v City of NewYork, 86 AD3d 628, 628 [2011]). "The jury's resolution of conflicting expert testimonyis entitled to great weight, as it is the jury that had the opportunity to observe and hear theexperts" (Saccone v Gross, 84AD3d 1208, 1208-1209 [2011] [internal quotation marks omitted]). "Where, as here,conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion andreject that of another expert" (Ferreira vWyckoff Hgts. Med. Ctr., 81 AD3d 587, 588 [2011]; see Lolly v Brookdale Univ. Hosp. & Med.Ctr., 90 AD3d 862 [2011]). Here, the jury was free to credit the testimony of thedefendant's expert witnesses over that of the plaintiffs' expert, and there is no basis to disturb itsdetermination.
The trial court properly denied the plaintiffs' request for a missing witness charge as untimelysince it was made after the close of all the evidence (see Buttice v Dyer, 1 AD3d 552,552-553 [2003]).
The plaintiffs' contention that the defendant's expert witnesses were not qualified to givetestimony is unpreserved for appellate review (see Schehr v McEvoy, 43 AD3d 899, 900 [2007]).
The plaintiffs' remaining contention is without merit. Dillon, J.P., Balkin, Belen andChambers, JJ., concur.