| Wolf v Persaud |
| 2015 NY Slip Op 06052 [130 AD3d 1523] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Sarah E. Wolf et al., Respondents-Appellants, v AndreA. Persaud, M.D., Appellant-Respondent, and Collins O. Osula, M.D., et al.,Respondents. |
Colucci & Gallaher, P.C., Buffalo (Marylou K. Roshia of counsel), fordefendant-appellant-respondent and defendants-respondents.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiffs-respondents-appellants.
Appeal and cross appeal from an order and judgment (one paper) of the SupremeCourt, Chautauqua County (Deborah A. Chimes, J.), entered February 26, 2014. Theorder and judgment, among other things, granted in part plaintiffs' posttrial motion to setaside the jury verdict.
It is hereby ordered that the order and judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action seekingdamages for injuries sustained by Sarah E. Wolf (plaintiff), which plaintiffs alleged werecaused by the failure of, inter alia, Andre A. Persaud, M.D. (defendant) to have timelydiagnosed a deep vein thrombosis in plaintiff's iliac vein. Following a trial, the juryreturned a verdict finding defendant negligent and awarded damages in the amounts of$1,050 for past medical expenses and $9,450 for future medical expenses. The juryawarded no damages for plaintiff's pain and suffering or for plaintiff Michael Wolf'salleged loss of consortium. During the trial, when plaintiffs rested and again at the closeof proof, defendant made a motion for a directed verdict pursuant to CPLR 4401 on theground that plaintiffs had failed to present a prima facie case on the issue of causation.Supreme Court denied both motions and defendant appeals from the order and judgmentwith respect thereto. Plaintiffs made a posttrial motion seeking to set aside the verdictwith respect to the issues of past and future pain and suffering, future medical expenses,and loss of consortium. The court granted that part of plaintiffs' posttrial motion withrespect to the issue of past and future pain and suffering, and ordered a new trial on thoseitems of damages. Plaintiffs cross-appeal from the order and judgment with respect to thedenial of the remaining parts of their posttrial motion.
We reject defendant's contention on appeal that the court erred in denying hismotions. In determining a motion for a directed verdict, the court must view the evidencein the light most favorable to the nonmoving party and resolve all issues of credibility infavor of the nonmoving party (see Colburn v Blum, 233 AD2d 888, 889-890[1996]), and may grant the motion only if there is no rational process by which the jurycould find for the plaintiffs as against the moving defendant (see Docteur vBelleville-Henderson Cent. School Dist., 307 AD2d 751, 752 [2003]; Murphy vKendig, 295 AD2d 946, 947 [2002]). Here, we conclude that plaintiffs presented aprima facie case on the issue of causation, i.e., legally sufficient evidence, through thetestimony of their expert, from which a jury could conclude that defendant's failure toorder a timely MRI study of plaintiff's iliac vein diminished her chance of a betteroutcome or increased the injury (see Goldberg v Horowitz, 73 [*2]AD3d 691, 694 [2010]). Although defendant's expertoffered a contrary opinion, the conflicting testimony merely presented a question of factfor the jury to resolve (seeMazella v Beals, 124 AD3d 1328, 1329 [2015]).
Defendant's further contention that the court erred in permitting the use of apublication from the American College of Obstetricians and Gynecologists to be usedduring cross-examination because he did not recognize it as "authoritative" is notpreserved for our review because he did not object to the publication on that specificground (see generally Carr vBurnwell Gas of Newark, Inc., 23 AD3d 998, 998 [2005]). In any event, it iswell settled that the use of scientific works and publications may be used forimpeachment purposes during cross-examination if it has been demonstrated that thework is the type of material commonly relied upon in the profession and has beendeemed authoritative by such expert (see Lenzini v Kessler, 48 AD3d 220, 220 [2008]; Eganv Dry Dock, E. Broadway & Battery R.R. Co., 12 App Div 556, 571 [1896]).Here, defendant recognized the publication as a "standard of care" to which he attemptedto "adhere" in his own practice. Although he did not use the word "authoritative" indescribing the publication, we note that the modern trend, with which we agree, is toeschew a narrow and rigid reliance upon semantic choices when other words, and thetestimony viewed as a whole, convey an equivalent meaning as that in the traditionalverbal formulation (see Linton vNawaz, 62 AD3d 434, 443 [2009], affd 14 NY3d 821 [2010]; Cholewinski v Wisnicki, 21AD3d 791, 792 [2005]; see also Matott v Ward, 48 NY2d 455, 460-461[1979]). Thus, a physician may "not foreclose full cross-examination by the semantictrick of announcing that he did not find the work authoritative" where he has testifiedthat it is reliable (Spiegel v Levy, 201 AD2d 378, 379 [1994], lv denied83 NY2d 758 [1994]; see Lenzini, 48 AD3d at 220), especially where, ashere, he agreed that it constituted a "standard of care" to which he attempted to "adhere."Defendant's further contentions concerning plaintiffs' cross-examination of the remainingexperts are without merit for the same reason.
We agree with plaintiffs that the court properly set aside the verdict with respect tothe jury's failure to award any damages for past or future pain and suffering and ordereda new trial on those items of damages (see Ramos v New York City Hous. Auth.,280 AD2d 325, 326 [2001]). Contrary to defendant's contention, plaintiffs' posttrialmotion to set aside that aspect of the verdict as against the weight of the evidencepreserved this issue for our review (see Simmons v Dendis Constr., 270 AD2d919, 920-921 [2000]). In light of the uncontradicted evidence of the chronic nature ofplaintiff's condition and the pain and discomfort associated therewith, the jury's failure toaward damages for pain and suffering "is contrary to a fair interpretation of the evidenceand constitutes a material deviation from what would be reasonable compensation"(Grasso v American Brass Co., 212 AD2d 994, 995 [1995]). Defendant failed topreserve for our review his further contention that the jury verdict with respect to theissues of liability and damages for pain and suffering represented a "compromise" verdict(see Wall v Shepard, 53AD3d 1050, 1050 [2008]; Ray v Oddo, 175 AD2d 155, 157 [1991], lvdenied 81 NY2d 702 [1993]).
We reject plaintiffs' contention on their cross appeal that the jury's failure to awardany damages on the cause of action for loss of consortium was against the weight of theevidence (see Rivera v City ofNew York, 40 AD3d 334, 344 [2007], lv dismissed 16 NY3d 782[2011]; Gutierrez v City of New York, 288 AD2d 86, 86 [2001]). Finally,contrary to plaintiffs' further contention, we conclude that the award of $9,450 for futuremedical expenses does not deviate materially from what would be reasonablecompensation (see CPLR 5501 [c]). Present—Smith, J.P., Carni, Lindley,Sconiers and DeJoseph, JJ.