| Rose v Conte |
| 2013 NY Slip Op 04297 [107 AD3d 481] |
| June 11, 2013 |
| Appellate Division, First Department |
| Noel Abraham Rose, as Executor of Hermine Browne,Appellant, v Salvatore Conte et al., Respondents, et al.,Defendants. |
—[*1] LeClairRyan, P.C., New York (Barry A. Cozier of counsel), forrespondents.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered August 26,2011, which granted the motion of defendants Dr. Salvatore Conte (Dr. Conte), SalvatoreConte, M.D., P.C., and Conte and Matfus, M.D., P.C. to set aside the jury verdict andgrant a new trial, reversed, on the facts, without costs, and the motion denied.
In this wrongful death action predicated on medical malpractice, the jury heardtestimony from plaintiff's oncology expert that the decedent's long-term primary carepractitioner, defendant Dr. Conte, deviated from accepted medical standards when, uponthe decedent's return to Dr. Conte's practice in February 2001, after a 21-month absence,with complaints of pain and other abdominal symptoms, he diagnosed her with irritablebowel syndrome (IBS), without referring her for an abdominal CT scan or agastrointestinal (GI) work-up (which would have included the scan), so as to excludeother conditions, and that these diagnostic tests would likely have detected the presenceof the tumor in the upper left quadrant of the abdomen. Due to this failure, the tumor wasnot definitively identified until March 2002, when the decedent returned from her nativeJamaica with a positive abdominal sonogram, and Dr. Conte immediately referred her fora CT scan, which confirmed the mass. Plaintiff's expert also opined that, based on thisextended delay, the decedent was deprived of the opportunity for a cure, defined as fiveyears' survival without the disease, insofar as her tumor was much smaller at the time ofher first complaints and would likely have been completely surgically resectable andamenable to treatment. By the time of the eventual surgery in May 2002, the tumor hadbecome so massive, and invaded so many organs, that it was only partially resected, and,despite several years of oncological treatment, the decedent died in September 2007.
While the defense took the position that the decedent failed to inform Dr. Conte ofcomplaints that would have justified his directing a GI work-up or abdominal scan, thejury was entitled to reject Dr. Conte's testimony to that effect, and to accept instead thedecedent's assertion, recorded in her videotaped deposition testimony, that she reportedcomplaints of [*2]excruciating stomach pain at each visit.Similarly, the jury could reject Dr. Conte's testimony that he first palpated an abdominalmass in September 2001 and advised the decedent to undergo GI testing, and that shesteadfastly refused to do so; that testimony, too, was flatly contradicted by the decedent'sdeposition testimony.
The dissent concludes that the weight of the evidence establishes that nothing in Dr.Conte's conduct could have caused the decedent's early death, since nothing he couldhave done would have prevented her death at that time. It emphasizes the defenseevidence asserting that the decedent's tumor was of a particular type, an EGIST(extra-gastrointestinal stromal tumor), which generally evades early detection when smalland asymptomatic, and only causes symptoms once it grows large (which it doesquickly). According to this theory, any CT scan or GI work-up ordered by Dr. Conte inFebruary 2001 would have had no impact on the development of her tumor and hereventual death.
However, the testimony offered by Dr. Conte and defense experts in this regard isnot absolute fact, but merely evidence that the jury was free to disregard if other, contraryevidence was more convincing. Both plaintiff's expert and the radiologist whointerpreted the March 2002 CT scan testified unequivocally that the tumor was of adifferent type, a GIST (gastrointestinal stromal tumor), which originated in thegastrointestinal tract and would have produced symptoms very early on, while it wassmaller and much more amenable to resection and treatment. The jury was also informedof a report by the decedent's doctor at a cancer treatment facility stating that the surgeon'sand the pathologist's diagnosis of the more fatal tumor was incorrect, and that the otherdiagnosis rendered by plaintiff's expert and the first radiologist was correct. In addition,there are multiple instances in the decedent's records of the surgeon's and another of thedecedent's oncologists' referring to the tumor as the more treatable GIST-type that causesearly symptoms and can be effectively treated.
The dissent suggests that plaintiff's expert oncologist was shown to be wrongbecause if the tumor had been a GIST, the decedent would have been in substantial painbetween February 2001 and September 2001, and "would have followed Dr. Conte'sadvice in September and October 2001 and submitted to an intestinal work-up."However, the decedent stated that she was in substantial pain and that Dr. Contedid not give her any such advice, ultimately leading her to obtain a secondopinion when she went to Jamaica in March 2002.
"The question of whether a verdict is against the weight of the evidence isdiscretion-laden, and the critical inquiry is whether the verdict rested on a fairinterpretation of the evidence" (Gartech Elec. Contr. Corp. v Coastal Elec. Constr. Corp., 66AD3d 463, 480 [1st Dept 2009], appeal dismissed 14 NY3d 748 [2010]). Onthis record, we conclude that the Supreme Court erred in setting aside the verdict asagainst the weight of the evidence, because it cannot be said that the jury could not havereached its verdict upon any fair interpretation of the evidence (see Bennett v Wolf, 40 AD3d274 [1st Dept 2007], lv denied 9 NY3d 818 [2008]). The jury was entitled toresolve in plaintiff's favor the conflict between the decedent's and Dr. Conte's testimonyas to the nature and timing of her complaints and whether he later made referrals for CTscans that she declined.
The dissent observes that in granting defendants' CPLR 4404 (a) motion, the trialcourt differed from the jury regarding the relative credibility of the decedent andplaintiff's expert, as opposed to that of Dr. Conte and his experts. However, since in ourview, a "fair interpretation of the evidence" supports the jury's verdict, the trial court'scontrary assessment does not justify a new trial.[*3]
This case essentially came down to a battle of theexperts with respect to the standard of care and the type of tumor at issue and whether itcould have caused symptoms at the time of the alleged departure, thus raising an issue ofcredibility peculiarly within the province of the jury (see Briggins v Chynn, 204AD2d 158 [1st Dept 1994]), whose determination should be afforded great deference(Nicastro v Park, 113 AD2d 129, 136 [2d Dept 1985]).
Insofar as Dr. Conte has challenged the sufficiency of the evidence underpinning theawards of compensation to the decedent's adult children, we find that the testimony as tothe nurture, care, and guidance provided by the decedent to all of the children, inparticular the care-taking services rendered to her handicapped son, was adequate tosupport their respective awards (see e.g. Gonzalez v New York City Hous. Auth.,77 NY2d 663 [1991]; Zygmunt v Berkowitz, 301 AD2d 593 [2d Dept 2003]).We further note that defendant does not challenge the $325,000 award for the decedent'spain and suffering. Concur—Tom, J.P., Acosta, Saxe and Feinman, JJ.
Freedman, J., dissents in a memorandum as follows: I would affirm the trial court'sorder under CPLR 4404 (a) setting aside the jury verdict against defendant SalvatoreConte, M.D., and directing a new trial. I believe the verdict was against the weight of theevidence as to the only issue submitted to the jury, namely, whether Dr. Conte shouldhave ordered a CT scan for plaintiff's decedent, Hermine Browne, when he saw her onFebruary 17, 2001, and, if so, whether Dr. Conte's failure to order the test substantiallycontributed to the decedent's death from cancer in September 2007 and her pain andsuffering before her demise.
After a CT scan in March 2002, the decedent was diagnosed with anextra-gastrointestinal stromal tumor (EGIST), a rare type of cancer arising in theretroperitoneum and other soft abdominal tissue surrounding the gastrointestinal tract. Inthis action for medical malpractice and wrongful death, plaintiff claims that Dr. Contewas negligent when he failed to order a CT scan in February 2001 because the EGISTcould have been diagnosed then and because an earlier diagnosis could have reduced herpain and suffering before death and might have prolonged her life.
After a lengthy trial, the jury returned a 5-1 verdict against Dr. Conte, finding that hedeparted from accepted standards of medical care by not ordering the CT scan and thatsuch departure was a proximate cause of the decedent's injuries. Curiously, andsomewhat inconsistently, the jury unanimously found in favor of Philip Klepper, M.D., apulmonologist who also did not order a CT scan for the decedent when he saw her inJuly 2001. The jury awarded plaintiff a total of $800,000 in damages, which included$325,000 for the decedent's pain and suffering and economic loss damages for familymembers that totaled $475,000.
Dr. Conte moved under CPLR 4404 (a) for an order setting aside the jury verdict anddirecting a new trial. The trial court granted the motion, finding that the verdict wasagainst the weight of the evidence.
The following was adduced at trial: Beginning in 1987, the decedent regularly sawdefendant Dr. Salvatore Conte, an internist, for a number of routine ailments, includinghigh blood pressure, irritable bowel syndrome (IBS), and shortness of breath. After a21-month [*4]hiatus, from May 1999 to February 2001,during which the decedent saw another doctor, she returned to Dr. Conte and thereaftersaw him regularly. According to Dr. Conte's examination notes and trial testimony, at theFebruary 2001 visit, the decedent, then 58, presented with increased blood pressure anddecreased hearing, and complained of anxiety and, in her own words, "abdominal gas."Dr. Conte performed a comprehensive physical examination including abdominalpalpation, and performed and ordered various laboratory tests, including an EKG, a chestX ray, a spirometry test, and an audiogram. Dr. Conte's notes indicated that the decedent'sabdomen was soft and her lungs were clear, but she had a number of chronic medicalproblems, including elevated cholesterol and IBS. For the decedent's abdominaldiscomfort, Dr. Conte prescribed Pamine, a drug used to treat ulcers, and recommended achange of diet.
Two weeks later, on March 3, 2001, the decedent reported to Dr. Conte that she feltmuch better, and did not complain about abdominal discomfort. Dr. Conte again palpatedher abdomen and found it soft. Thereafter the decedent visited Dr. Conte on April 27,May 12, May 26, June 23, and August 8, 2001. Dr. Conte's examination notes for thosevisits indicated that her abdomen remained soft and non-tender. On the May 12 visit, Dr.Conte referred her to Dr. Klapper because he was concerned about breathing difficulties.Dr. Klapper performed a battery of pulmonary function tests in July 2001 and January2002, all of which were negative.
On September 21, 2001, Dr. Conte for the first time detected a non-tender "fullness"in the left upper quadrant of the decedent's abdomen. Dr. Conte's notes and trialtestimony indicated that he could not determine the mass's size or dimension, but heinformed the decedent about it and referred her to a gastroenterologist for testing,including a CT scan and abdominal sonogram. However, the decedent refused thereferral. On October 5 and December 5, 2001, and January 16 and February 16, 2002, Dr.Conte continued to detect abdominal fullness, but, according to his notes, the decedentrefused his repeated advice that she go for a full gastrointestinal work-up, including a CTscan.
In his January 16, 2002 notes, Dr. Conte described the fullness as a non-tender"questionable mass." On February 16, Dr. Conte noted that the abdomen was still soft,but the mass was palpable.
On March 20, 2002, the decedent saw a gynecologist in Jamaica who performed asonogram and detected an abdominal mass. When the decedent returned from Jamaica,she provided the sonogram results to Dr. Conte, who in March 26 referred her for a CTscan with contrast, which detected a large mass. The radiologist who interpreted the CTscan results, Dr. Ralph Lichenstein, reported that the mass "possibly arose from [the]posterior wall of the stomach," which would classify the mass as a gastrointestinalstromal tumor (GIST), a type of cancer that grows directly from the gastrointestinal tractand is much more common than an EGIST.
After the diagnosis, Dr. Conte referred the decedent to Dr. Robert Plummer, ageneral surgeon, who first saw the decedent on March 28 and referred her for anendoscopy and colonoscopy. Neither test detected any mucosal disease or other evidenceof a tumor within the gastrointestinal tract, but they detected an external mass causingpressure on the decedent's stomach. On May 6, 2002, Dr. Plummer performed anexploratory laparoscopy to examine the tumor, and removed a large portion of it. Dr.Plummer testified with a reasonable degree of medical certainty that the tumor was anEGIST that grew from the retroperitoneum, and not a GIST growing from the stomach orother vital organs. The pathologist who biopsied the tumor, Dr. James Pullman, alsodiagnosed an EGIST.[*5]
Following the May 2002 surgery, Dr. Plummerreferred the decedent to an oncologist for treatment of an EGIST arising from theretroperitoneum. In fact, the decedent sought a second opinion from MemorialSloan-Kettering Cancer Center after her surgery; the examination note indicated an"impression" that the tumor "apparently ar[ose] from the retroperitoneum."
The oncologist treated the decedent until her death in September 2007, 6½years after February 2001.
Plaintiff presented the decedent's videotaped deposition testimony. The decedenttestified that, at each visit with Dr. Conte from February 2001 onward, she complained tohim of excruciating stomach pain. The decedent further testified that Dr. Conti did notadvise her at the September 2001 visit that he had palpated an abnormality in herabdomen and did not advise her to undergo GI testing.
Plaintiff also presented one expert witness, oncologist Barry Singer, M.D., in supportof her one claim that Dr. Conte's failure to order a CT scan in February 2001 was adeparture that proximately caused either greater morbidity or earlier death. Althoughplaintiff's expert disclosure stated that in Dr. Singer's opinion Dr. Conte was liable fornot taking steps to diagnose or rule out an EGIST, at the trial Dr. Singer testified that thedecedent suffered from a GIST, and insisted that it could have been detected in February2001. This testimony by Dr. Singer, who had never treated the decedent or any otherpatient suffering from an EGIST, conflicts with the conclusion of the decedent's surgeon,attending pathologist, and oncologist that she suffered from an EGIST. The difference issignificant because, as the jury learned through extensive testimony, a GIST growsdirectly from the gastrointestinal tract and implicates the organs' nerve endings.Typically, a GIST is diagnosed when smaller because it implicates the organs' nerves andoften causes excruciating pain, blockage, and bleeding. An EGIST, which arises in softtissue, generally evades early detection when small because it is ordinarily anasymptomatic, "silent" tumor. An EGIST tends to grow quickly, however, and generallydoes not begin to cause serious symptoms until it is already very large. Accordingly, thenature of the decedent's tumor is relevant to whether Dr. Conte's failure to order a CTscan could have been a departure, let alone could have caused earlier death or additionalmorbidity.
The court properly found that the verdict against Dr. Conte was against the weight ofthe evidence presented. Generally, a jury verdict should not be set aside under CPLR4404 (a) unless it could not have been reached "on any fair interpretation of theevidence" (e.g. Nicastro v Park, 113 AD2d 129, 134 [2d Dept 1985] [internalquotation marks omitted]). Even if the prevailing party proffers legally sufficientevidence, the verdict may still be set aside if the evidence as a whole weighs heavily inthe losing party's favor (see Lolik v Big V Supermarkets, 86 NY2d 744, 746[1995]). A trial court's determination that the verdict is against the weight of the evidence"is essentially a discretionary and factual determination" within the scope of the court'sprofessional judgment (Yalkut v City of New York, 162 AD2d 185, 188 [1stDept 1990]; see Fisk v City ofNew York, 74 AD3d 658 [1st Dept 2010]).
The majority asserts that the decedent's deposition testimony creates an issue of factwhether, at the critical February 2001 visit and thereafter, the decedent complained to Dr.Conte of excruciating stomach pain. However, the trial judge who heard the evidenceclearly disbelieved the decedent's testimony about this excruciating pain because of theoverwhelming evidence that Dr. Conte was a thorough physician who would not haveignored a patient's complaint of severe pain. Dr. Conte took detailed written notes duringthe decedent's visits. In none of his notes does Dr. Conte indicate that she hadexcruciating stomach pain. Instead, Dr. [*6]Conte's notesindicate that in February 2001 the decedent complained of abdominal gas, for which heprescribed medication, and at the next visit in March 2001 she reported feeling muchbetter. Moreover, Dr. Conte took measures to address a number of the decedent'sconditions, including prescribing medication for elevated blood pressure and cholesterollevels, and referring her to a pulmonologist for medical tests in connection withbreathing problems.
The majority also finds that the decedent's testimony raises an issue whether, inSeptember 2001, Dr. Conte advised her to undergo GI testing after he palpated anabdominal mass, although his notes indicate that he did. But that issue is irrelevant. Theonly question before the jury was whether Dr. Conte committed malpractice by failing toorder a CT scan when he saw the decedent in February 2001.
The trial court, having heard all the testimony, was also more than justified indiscounting Dr. Singer's opinion because it conflicted in a number of ways with the bulkof the evidence that was introduced at trial. The decedent's treating surgeon, pathologist,and oncologist and plaintiff's own expert, according to his expert disclosure, all indicatedthat the decedent suffered from an EGIST, in contrast with Dr. Singer's finding that shesuffered from a GIST.
Dr. Singer maintained at trial that the decedent had a diagnosable GIST in February2011, but in that case the decedent would have followed Dr. Conte's advice in Septemberand October 2001 and submitted to an intestinal work-up. The decedent's testimony thatshe informed Dr. Conte that she was in great pain but he did not advise her to have anintestinal work-up is, as already noted, simply not credible.
Moreover, Dr. Singer did not show with reasonable medical certainty that thedeparture was a proximate cause of the decedent's injuries (see Rivera v Greenstein, 79AD3d 564, 568 [1st Dept 2010]; Alvarado v Miles, 32 AD3d 255, 257 [1st Dept 2006],affd 9 NY3d 902 [2007]). "Competent medical proof as to causation is. . . essential" (Rivera at 568; Stanski v Ezersky, 228 AD2d311, 312 [1st Dept 1996], lv denied 89 NY2d 805 [1996]), and an expert's"conclusory assertions and mere speculation that a doctor could have discovered thecondition and successfully treated the patient" is insufficient (Rivera at 568).
Here, Dr. Singer offered no evidence that if Dr. Conte had recommended a CT scanor a sonogram in February 2001, slightly more than a year earlier than the May 2002 CTscan, the decedent would have had a better outcome. Dr. Singer speculated that, withearlier detection, the decedent might have lived longer and Dr. Plummer could haveentirely removed the tumor, but he also acknowledged that the tumor could recur. Dr.Singer further testified that if the tumor had been diagnosed and resected earlier, and thedecedent had been treated with the drug Gleevec, she would have lived five yearswithout symptoms. However, as was demonstrated, Gleevec was unavailable until 2002,and in any event the decedent lived more than six years after Dr. Conte's allegeddeparture.[*7]
For the reasons set forth above, I would notdisturb the trial court's provident exercise of its discretion in setting aside the verdict andordering a new trial.