Opinion
118791/00.
Decided October 7, 2004.
Pursuant to CPLR 4404, plaintiffs Adrian Cholewinski ("Adrian") by his mother Lucyna Cholewinski ("Ms. Cholewinski") and Ms. Cholewinski, individually, move to set aside the verdict finding no departures on the part of defendants H. Jay Wisnicki, M.D. ("Dr. Wisnicki") and Beth Israel Medical Center ("Beth Israel"), as Dr. Wisnicki's employer.
Background
In this medical malpractice action, plaintiffs claim that defendants Dr. Wisnicki, Douglas F. Buxton, M.D. ("Dr. Buxton"), Roberto Cavalieros, M.D. ("Dr. Cavalieros"), Beth Israel and The New York Eye Ear Infirmary ("Infirmary") negligently injured Adrian while treating his lacerated cornea. Plaintiffs' Affirmation in Support of Motion ("Aff."), at 2. His mother states that he hit his eye on the corner of a table on September 11, 1997. At the time of the injury, Adrian was three-years-old. Aff., at 2. Ms. Cholewinski took Adrian to an adult ophthalmologist on September 16, 1997, and was referred to Dr. Wisnicki, a pediatric ophthalmologist, for examination the same day. Id.
On September 16, 1997, Dr. Wisnicki and his colleague, Suzanne Bellante, M.D. ("Dr. Bellante"), examined Adrian using a transilluminator (a light source that allows the doctor to see the patient's pupil and iris) and noted that Adrian's eyes were reactive. Aff., at 4. At this time, Dr. Wisnicki diagnosed Adrian with traumatic mydriasis of the left eye. Id. The doctor also noted that, although he had no diagnosis of the right eye, Adrian could have a laceration to his right cornea. Id. Dr. Wisnicki then instructed Ms. Cholewinski to return with Adrian on September 30, 1997, for a follow-up appointment. Id.
On September 30, 1997, Adrian returned to Dr. Wisnicki, and at that time, Dr. Wisnicki diagnosed Adrian with a lacerated cornea and an incarcerated iris of the right eye. Aff., at 5. Dr. Wisnicki then referred Adrian to the Infirmary for surgery. Id.
On October 1, 1997, Adrian went to the Infirmary and met with Dr. Parikh, a second-year resident, Dr. Buxton, a board-certified ophthalmologist and specialist in cornea surgery, and Dr. Cavalieros, a third-year resident. Aff., at 5. Dr. Cavalieros observed that Adrian's cornea was lacerated and that his iris was prolapsed, and Dr. Buxton determined that Adrian's laceration was not sealed and was intermittently leaking. Id. Drs. Cavalieros and Buxton performed surgery on Adrian at the Infirmary on October 2, 1997. Id.
Following surgery, Adrian suffered a cataract and glaucoma and required two additional surgeries at the Infirmary, which took place on October 20, 1997, and March 5, 1998. Aff, at 6. Adrian currently suffers from peripheral scarring of the cornea, high astigmatism and irregular astigmatism and amblyopia (laziness) of the right eye. Dr. Wisnicki's Affirmation in Opposition, ("Aff. Opp."), Ex. A., Trial Testimony ("TT"), at 537. Each day Adrian must wear an eye patch for three hours and he will need life-long ophthalmological care. TT, at 839.
Plaintiffs brought suit against defendants Dr. Wisnicki, Dr. Cavalieros and Dr. Buxton, as well as Beth Israel and the Infirmary as their employers, claiming that Dr. Wisnicki committed malpractice in failing to diagnose and treat Adrian on September 16, 1997, and that Drs. Cavalieros and Buxton committed malpractice during the subsequent surgery. The parties went to trial on December 1, 2003. TT, at 1.
Incorrect Diagnosis of Right Eye on September 16, 1997
Plaintiffs' first claim was that on September 16, 1997, Dr. Wisnicki incorrectly diagnosed Adrian. Aff., at 9. On direct examination by plaintiffs' attorney, Dr. Wisnicki testified that he diagnosed Adrian with traumatic mydriasis of the left eye on September 16, 1997. TT, at 127. He later testified that this diagnosis was incorrect. TT, at 164. Dr. Wisnicki further testified that he made no diagnosis with regard to Adrian's right eye on September 16, 1997. Id.; see also TT, at 116. Dr. Wisnicki admits, however, that Adrian's right eye was lacerated on September 16, 1997.
Q: "On September 16th, did you make a diagnosis of a laceration of the cornea in the right eye, on September 16th?
A: "No.
Q: "Do you have an opinion with a reasonable degree of medical certainty as to whether there was a laceration in Adrian's cornea on September 16th?
A: "Yes.
Q: "And am I correct that it is your opinion that there was a laceration that had become sealed?
A: "Yes."
TT, at 139-40.
To explain his incorrect diagnosis of the left eye and failure to diagnose the right eye, Dr. Wisnicki testified that he had no knowledge of which eye was hit during the accident, TT, at 123. Interestingly, though, Adrian presented with redness only in his right eye. TT, at 116; see also TT, at 921. Indeed, the following testimony was elicited from Dr. Wisnicki on direct examination by plaintiffs' counsel:
Q: "Were both eyes red?
A: "They may have been. The way it's documented, only the right eye has been documented as being red.
Q: "You had made a diagnosis that there was a traumatic injury to the left eye?
A: "Yes.
Q: "But it wasn't red?
A: "You can have severe traumatic injuries with no redness.
* * *
Q: "And the eye that was red, you made no diagnosis?
A: "Yes."
TT, at 131-32.
Dr. Wisnicki stated at trial that he believed that Adrian's right eye was red from crying out of the right eye alone, not because of the injury. TT, at 131. According to Adrian's September 16, 1997 report, Adrian was tearing from only his right eye. TT, at 264 (redirect of Dr. Wisnicki by plaintiffs' attorney). Dr. Wisnicki explained that Adrian could have been crying from only his right eye. "It's quite common actually. Just like an actress in a movie starts crying on one side. It could be asymmetric. They usually do. Crying is not symmetric." TT, at 126 (re-direct examination by plaintiffs' attorney).
Plaintiffs also contend that Dr. Wisnicki should have known that Adrian's right eye was injured because of the size difference in Adrian's pupils. James Schutz, M.D. ("Dr. Schutz"), a board-certified ophthalmologist, testified at trial for the plaintiffs. Dr. Schutz attended Yale University as an undergraduate and Harvard Medical School for his doctoral degree. TT, at 447. After medical school, Dr. Schutz did a residency at Manhattan Eye, Ear and Throat Hospital, and then went into active duty in the United States Army, where he became a major and chief ophthalmologist at Fort Monmouth in New Jersey. TT, at 449-50. He is currently affiliated with New York Hospital, Cornell University, and Manhattan Eye, Ear and Throat Hospital and is a consultant to the New York Hotel Workers Union Health Center. TT, at 452. Dr. Schutz also teaches medicine at Cornell University. TT, at 453. With regard to Adrian's injuries, Dr. Schutz states,
"In this child with a history of trauma with a right red eye, with a tearing right red eye and unequal pupils there was no explanation for the abnormalities of the right eye which had signs of injury but a diagnosis was made of 'traumatic mydriasis.' That means the diagnosis was the pupils dilated in the left eye as a result of trauma. * * * The chart reflects a wrong diagnosis and a seriously incomplete examination * * *."
TT, at 464. On direct examination, Dr. Wisnicki further testified as follows in response to questions by plaintiffs' counsel:
Q: "During the course of the visit on September 16th of 1997, did you consider that the difference in size of the pupils was because there was an injury to the iris on the right and that the pupil on the right was smaller than normal?
A: "Yes. You consider everything when you see a child.
Q: "And did you make a diagnosis with respect to the pupil on the right being smaller than the one on the left?
A: "Not on September 16th."
TT, at 133.
Failure to Complete Exam
Plaintiffs' further allege that Dr. Wisnicki deviated from accepted standards of ophthalmological practice by failing to complete the exam on September 16, 1997, in light of the condition of Adrian's right eye. In support, Dr. Schutz testified that, "major portions of the examination couldn't be done and it's quite an incomplete exam with no explanation for positive important physical findings in a child with a history of trauma." TT, at 464.
Indeed, Dr. Wisnicki admitted at his deposition that he wanted to do a more complete exam on September 16, 1997, but did not do it. Dr. Wisnicki acknowledged that he wished to do a slit lamp examination of the anterior segment of the eye so that he could perform a more detailed examination of the front of the eye. Nonetheless, he did not do these tests. TT, at 151-52 (reading from Dr. Wisnicki's deposition). In response to hearing this testimony at trial, Dr. Wisnicki stated, "I wanted to do a slit lamp and other things. * * * We like to do a cycloplegic refraction and a slit lamp examination. And depending on what we find, sometimes other things as well." Id.
In addition, Dr. Wisnicki admitted that if Adrian's right eye was leaking and plaintiffs claim that it was then it would have been a departure not to do a slit lamp evaluation. At trial, Dr. Wisnicki was questioned and answered as follows:
Q: "Isn't it true that in your records for September 16, there was fluid coming out of Adrian's right eye and documented on the chart?
* * *
A: "Tearing is much more fluid than would normally come out of an eye from an injury.
Q: "Doctor, yes or no, was there fluid coming out of Adrian's eye?
A: "Yes.
Q: "Did you rule out a laceration of Adrian's right eye on September 16?
A: "No.
Q: "Doctor, isn't it true that you would want to treat a laceration of the cornea as soon as possible?
A: "Yes.
Q: "And you would want to make that diagnosis as soon as possible?
A: "Yes.
Q: "And if you hadn't ruled out a laceration of the right eye on September 16, with leaking of fluid from the right eye, wouldn't it be a departure from accepted practice not to do an exam, a slit lamp exam, either on the 16 or shortly thereafter?
A: "Yes.
Q: "It would be a departure?
A: "Yes."
TT, at 140-42. Indeed, Dr. Schutz states, based on the notes in Dr. Wisnicki's chart, that Adrian's right eye was leaking on September 16, 1997. TT, at 476.
Dr. Wisnicki defended his failure to complete the examination by stating that Adrian was uncooperative. He testified that he did not attempt to raise Adrian's right eyelid during the September 16, 1997, examination because he, "didn't have the opportunity because [Adrian] just was screaming and kicking and not cooperative." TT, at 203 (cross-examination of Dr. Wisnicki by his attorney).
Plaintiffs elicited testimony, however, that reveals that Adrian was somewhat cooperative.
Q: "For all these studies, both Dr. Bellante and yourself and the child was sufficiently cooperative to put drops in the eyes, to look in the eyes with the transilluminator, to put your fingers on his eyes in order to evaluate him, is that correct?
* * *
A: "Yes."
TT, at 119. Furthermore, Dr. Bellante wrote in the chart "no cooperation," but Dr. Wisnicki states that he crossed it out because, by time he saw Adrian, there was "some degree of cooperation." TT, at 119-20.
Plaintiffs also allege that if Dr. Wisnicki, in fact, could not complete the exam because Adrian would not cooperate, then he should have put Adrian under anesthesia to finish the exam. In support of plaintiffs' theory, Dr. Schutz says that Dr. Wisnicki departed from accepted ophthalmological standards by failing to complete the exam because he could have sedated or anesthetized Adrian or asked Adrian to come back the very next day. TT, at 465-66 (direct examination of Dr. Schutz by plaintiffs' attorney).
On direct examination, Dr. Wisnicki testified that, if the condition warranted, a child could be put under anesthesia to complete an exam. TT, at 96-97, 124-25. Dr. Wisnicki also testified that, in this case, he considered anesthesia but decided against it because the situation was not urgent and because of the risk of general anesthesia. TT, at 125.
In the alternative, plaintiffs claim that Dr. Wisnicki could have sedated or calmed down Adrian in another way. For example, on September 30, 1997, Dr. Wisnicki asked Ms. Cholewinski to put Adrian to sleep and then performed a complete examination. TT, at 800 (direct examination of Ms. Cholewinski). He did not ask Ms. Cholewinski to put Adrian to sleep on September 16, 1997, however. Id.
Plaintiffs claim that as a result of Dr. Wisnicki's failure to complete an exam, he obtained incomplete information on Adrian. For example, plaintiffs' counsel asked of Dr. Wisnicki on direct examination whether Adrian had any eye misalignments, cross eyes, or eyes that turn out. Dr. Wisnicki responded, "That was unable to be assessed * * * because of the child's cooperation." TT, at 122. Furthermore, Dr. Wisnicki testified on cross-examination by his attorney that he did not see the peaked pupil of the right eye on September 16, 1997, because he didn't have the opportunity to use a slit lamp on September 16, 1997. TT, at 172-73.
Dr. Schutz testified that, "The proper procedure would be to reexamine the child * * * within a day or so, and to make a diagnosis of lacerated cornea and to repair it as an emergency." TT, at 467 (direct examination of Dr. Schutz by plaintiffs' attorney). Dr. Schutz opined that Dr. Wisnicki's failure to do this was a departure from good and accepted medical practice. Id. In fact, John Flynn, M.D. ("Dr. Flynn"), Dr. Wisnicki's expert and a board-certified ophthalmologist himself, stated the preferred practice pattern is to complete a comprehensive eye evaluation when redness and tearing are accompanied by a history of trauma. TT, at 1229. Nonetheless, Dr. Flynn also stated that Dr. Wisnicki conformed to the standard of care in not completing the exam because Adrian was at no risk for infection and the wound was completely sealed. TT, at 1169.
Delay in Treatment: Prolapse Occurred Between Visits
Plaintiffs also assert that Dr. Wisnicki was negligent in failing to re-examine Adrian until two weeks after the initial visit. Aff., at 18. Ms. Cholewinski asserts that between September 16, 1997, and September 30, 1997, Adrian's right iris prolapsed. Id.
Plaintiffs' first offer of proof is that Adrian's iris was not prolapsed on September 16, 1997. This is supported by Dr. Wisnicki's own testimony in which he states, with a reasonable degree of medical certainty, that Adrian's eye was not prolapsed on September 16, 1997. TT, at 206. Dr. Wisnicki further asserts that although Adrian had a corneal laceration on September 16, 1997, it was sealed, and therefore, not at risk for prolapse. TT, at 139-40 (direct examination by plaintiffs' attorney); TT, at 219 (cross-examination by his attorney).
Plaintiffs assert that on September 30, 1997, by contrast, Adrian's iris was prolapsed. Dr. Schutz testified that, "There was a drastic change between the first visit on 9/16 and the second visit on 9/30. The iris had become prolapsed through the cornea and scarred, severely scarred, into that wound." TT, at 475.
This is supported by Dr. Bellante's drawings and the testimony of Drs. Buxton and Cavalieros. See, e.g., TT, at 972; TT, at 1072. For example, on September 30, 1997, Dr. Bellante wrote in Adrian's chart that his right eye "appears updrawn nasally with iris pushed up against endothelium of cornea." TT, at 143. Additionally, Dr. Cavalieros testified that Adrian's right eye chamber was shallower than the chamber on the left and that his right eye was leaking. TT, at 978. On direct examination by plaintiffs' attorney, Dr. Buxton testified that Adrian's cornea was lacerated, not self-sealed, and was leaking aqueous. TT, at 302-03. Dr. Buxton also testified that the iris was incarcerated caught in the wound and that part of the iris was sticking out outside the surface of the eye, and therefore, prolapsed. TT, at 312, 363.
Dr. Wisnicki disagrees. He wrote in Adrian's chart on September 30, 1997, "self-sealing corneal laceration with iris in wound, chamber formed quiet." See, TT, at 144. Furthermore, Dr. Wisnicki states that Adrian's iris had not prolapsed on September 30, 1997, and that Adrian's iris was incarcerated in the cornea but not protruding. TT, at 156-57 (emphasis added). Later, however, Dr. Wisnicki states that, "it [the iris] was pushed up against the endothelium, not necessarily incarcerated." TT, at 158 (emphasis added).
In support of her colleague, Dr. Bellante testified, "strictly based on my findings, I don't think there was any difference [in Adrian's eye from September 16 to September 30, 1997]. There was no difference in the condition." TT, at 926 (direct examination of Dr. Bellante by Dr. Wisnicki's attorney). Dr. Flynn Dr. Wisnicki's expert states that Adrian's eye could not have prolapsed between September 16, 1997 and September 30, 1997, because the eye would have become infected; therefore, his opinion was that there was no change in status between Dr. Wisnicki's first and second visit with Adrian. TT, at 1183. Dr. Parikh also opines that Adrian's right eye was not leaking when he saw the patient, TT, at 1107, and further, that the eye was "quiet." TT, at 1108. In defining "quiet," however, Dr. Parikh states that it means that the eye is not red; he does not state that "quiet" means the iris is not prolapsed. Id. Causation
Plaintiffs urged that as a result of Dr. Wisnicki's failure to diagnose Adrian's lacerated cornea before the iris prolapsed, Adrian had to undergo much more serious surgery and that he sustained much more serious injuries. For example, Dr. Schutz states,
"The delay in diagnosis resulted in intermittent leakage of fluid, the clear fluid from under the cornea out, and there came a time where the child rubbed his eye or squeezed his eye hard when enough fluid seeped out that the iris, the color tissue, came and came into the laceration and plugged it, complicating a simple laceration and turning it into an iris prolapse.
"The iris prolapsed into and through the laceration and it allowed to remain there for days, became severely scarred in place, such that when the reparative surgery was done ultimately after delay * * * they ended up converting a simple laceration, which have been easy to close, into a leaky laceration as they attempted to clean the iris tissue out of it."
TT, at 471-72.
Furthermore, Steven Rubin, M.D. ("Dr. Rubin") Dr. Cavalieros's expert and a board-certified ophthalmologist testified that once Adrian's iris prolapsed, it was more difficult to treat the laceration. TT, at 1337. Dr. Rubin stated that had Adrian been treated before his iris prolapsed, the surgeons would not have had to use a cadaver graft and the surgery would have been much more simple. TT, at 1348. Dr. Schutz opined that as a result, Dr. Wisnicki departed from good and accepted medical practice on September 16, 1997. TT, at 453.
Dr. Flynn, Dr. Wisnicki's expert, had a different theory, however. The doctor opined that Adrian's eye sealed within eight to twelve hours of injury. TT, at 1162-63 (direct examination of Dr. Flynn by Dr. Wisnicki's attorney). He testified that by the time Dr. Wisnicki saw Adrian, "the surface of the cornea had completely repaired," and that Adrian's eye could not have been leaking on September 16, 1997, otherwise Adrian would have gotten an infection. TT, at 1166, 1168.
Furthermore, Dr. Flynn stated that even if Dr. Wisnicki had referred Adrian to the Infirmary for surgery on September, 16, 1997, it would not have made any difference in Adrian's medical course of treatment. TT, at 1183. Later, however, plaintiffs' attorney inquired of Dr. Flynn:
Q: If Adrian had a lacerated cornea but the iris had not as yet become incarcerated or prolapsed through the laceration then the surgery to correct the laceration would be much simpler than what Adrian ultimately had to go through, correct?"
A: "Yes."
TT, at 1238.
Verdict at Trial
After the trial, the following interrogatories were submitted to the jury:
"1. Did the defendant, Dr. H. Jay Wisnicki, depart from accepted ophthalmological standards by not performing a complete examination on the plaintiff, Adrian Cholewinski, on September 16, 1997?
3. Did the defendant, Dr. H. Jay Wisnicki, depart from ophthalmological standards by not re-examining the plaintiff, Adrian Cholewinski, within a day or two of September 16, 1997, and before September 30, 1997?"
Questions two and four related to questions one and three, respectively, and inquired whether the departures were a substantial factor in causing plaintiffs' injuries. The jury never got to questions two or four, however, because they did not find that the defendants departed from accepted standards of medical care.
On December 19, 2003, the jury rendered a verdict in favor of defendants Dr. Wisnicki, Beth Israel, Dr. Buxton, Dr. Cavalieros, and the Infirmary and answered "NO" to both the above interrogatories. Aff., at 2. Plaintiffs now move to set aside the jury's verdict with regard to Dr. Wisnicki and Beth Israel and request a new trial. Aff., at 3. Plaintiffs base this request on allegations that the verdict was legally defective and contrary to the weight of the evidence. Aff., at 2.
Beth Israel's liability in this case is predicated on vicarious liability. At trial, plaintiffs adduced that Dr. Wisnicki is a salaried employee of Beth Israel, and therefore, Beth Israel is vicariously liable for Dr. Wisnicki's departures at its hospital. TT, at 246.
Analysis
CPLR 4404(a) states, "After a trial * * *, upon the motion of any party or its own initiative, the court may set aside a verdict or any judgment entered thereon * * *." The court also has the inherent authority to "order a new trial * * * where the verdict is contrary to the weight of the evidence." CPLR 4404(a); McDermott v. Coffee Beanery, Ltd., ___ AD3d ___, 777 NYS2d 103 [ 9 AD3d 195] (1st Dep't 2004).
After a trial, a jury verdict of no liability in favor of defendants should not be set aside, "unless the preponderance in favor of plaintiff was so great that the finding in favor of defendant could not have been reached on any fair interpretation of evidence." Tinnerholm v. Sheridan Duncan, Inc., 86 NYS2d 334 (1st Dep't 1949); see also, Darrow v. Lavancha, 169 AD2d 965, 966 (3d Dep't 1991). Nonetheless, "the fact that some of the testimony creates a factual issue does not deprive the court of the power to intervene in an appropriate case." Salles v. Manhattan and Bronx Surface Tr. Operating Auth., 178 AD2d 110, 111 (1st Dep't 1991) ( quoting, Nicastro v. Park, 113 AD2d 129, 135 [2d Dep't 1985]); Fuchs v. Wolf, 148 AD2d 665, 666 (2d Dep't 1989).
Additionally, the trial judge has the power to set aside a verdict "in the interests of justice." Micallef v. Miehle Co., 39 NY2d 376, 381 (1976); McCarthy v. Port of New York Auth., 21 AD2d 125, 127 (1st Dep't 1964). This power is "discretionary," and that discretion should not be disturbed unless the trial court's decision is found to be unreasonable. Micallef v. Miehle Co., 39 NY2d, at 381; Salles v. Manhattan and Bronx Surface Tr. Operating Auth., 178 AD2d, at 110; see also, Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978). The court's discretion is broad and should be liberally construed because, "the Judge who presides at trial is in the best position to evaluate errors therein." Micallef v. Miehle Co., 39 NY2d, at 381. Furthermore, "the independence of mind with which [the duty of the judge to supervise the reasonableness of verdicts] is exercised is ingredient to the sound health of the judicial process." Nicastro v. Park, 113 AD2d, at 136 ( quoting, Mann v. Hunt, 283 A.D. 140, 141 [3d Dep't 1953]).
As a result, appellate courts have repeatedly upheld trial courts' reversal of jury verdicts. See, e.g., Lee v. Pathmark Stores, Inc., 1 AD3d 219 (1st Dep't 2003) (jury's apportionment of 65 percent fault to the plaintiff and failure to award damages for future pain and suffering in slip and fall case was contrary to weight of evidence); Toyos v. City of New York, 304 AD2d 319 (1st Dep't 2003) (jury's finding that lack of roadway shoulder was not a substantial factor in causing plaintiff's injuries sustained while changing a tire was contrary to weight of evidence); Salles v. Manhattan and Bronx Surface Tr. Operating Auth., 178 AD2d, at 111 (jury's finding of 85 percent liability against the transit authority was against the weight of the evidence because a bus passenger's unimpeached testimony demonstrated that the pedestrian walked into the bus after it passed while she was looking the other way); Darrow v. Lavancha, 169 AD2d, at 966 (jury's finding of no negligence was against the weight of the evidence because a medical expert attributed at least some of plaintiffs' injuries to defendant); Fuchs v. Wolff, 148 AD2d, at 666 (jury's finding of fault of defendant in automobile accident case was against weight of evidence because disinterested eyewitness testified that defendant was properly operating his vehicle); Pire v. Otero, 123 AD2d 611 (2d Dep't 1986) (jury's verdict of no liability for the defendants was against the weight of the evidence because an impartial witness testified that he saw plaintiff enter the intersection with a light in her favor and that the defendant hit her while traveling at 15 to 20 miles per hour); Nicastro v. Park, 113 AD2d, at 139 (jury's finding of no fault was against weight of evidence because plaintiff died after defendant failed to diagnose him with a myocardial infarction in spite of clear symptoms indicating myocardial infarction); Harris v. Armstrong, 97 AD2d 947 (4th Dep't 1983) (jury's verdict of liability was against the weight of evidence); Pickard v. Koenigstreuter, 70 AD2d 693 (3d Dep't 1979) (jury's verdict of no liability was against the weight of evidence because defendant admitted that he turned into plaintiff's lane in violation of Vehicle and Traffic Law § 1141); Yacano v. DeFayette, 67 AD2d 1059 (3d Dep't 1979) (jury's finding of no liability was against weight of evidence because defendant testified that he saw plaintiff's car at 500 feet, and despite the snowy weather, did not brake until he was thirty feet from plaintiff's vehicle, crashing into her); McDowell v. DiPronio, 52 AD2d 749 (4th Dep't 1976) (jury's finding of liability was against weight of evidence because defendant collided with plaintiff and failed to prove contributory negligence); Hogeboom v. Protts, 30 AD2d 618, 620 (3d Dep't 1968) (jury's finding of no contributory negligence was against the weight of the evidence because plaintiff, a pedestrian, crossed outside a crosswalk on a snowy night); Mann v. Hunt, 283 A.D., at 142 (jury's finding of no liability for personal injury was against weight of evidence because defendant crashed into plaintiff's parked car and two witnesses testified that plaintiff was inside the car at the time of the accident).
Here, plaintiffs move to overturn the jury's verdict with regard to Dr. Wisnicki and Beth Israel and request a new trial because they claim that the verdict was legally defective and contrary to the weight of the evidence. Aff., at 2.
This Court agrees with plaintiffs' argument that the jury's verdict was against the weight of the evidence. Whether Adrian's injuries are the result of any malpractice by Dr. Wisnicki should not be determined by this Court, but surely a finding that Dr. Wisnicki made no departures is against the weight of the evidence. The record is replete with evidence of negligence that this Court unlike the jury cannot ignore. See, Nicastro v. Park, 113 AD2d, at 137; see also, Pire v. Otero, 123 AD2d, at 611.
First, Dr. Wisnicki admits that he made an incorrect diagnosis of Adrian's right and left eyes on September 16, 1997. TT, at 116, 139-40, 164. Plaintiffs further demonstrated that Dr. Wisnicki's diagnosis of traumatic mydriasis in the left eye and no diagnosis in the right eye was "inconceivable" in light of Adrian's symptoms, which are uncontested. TT, at 116 (only his right eye was red); TT, at 264 (only his right eye was tearing); TT, at 133 (his right pupil was smaller).
Then, Dr. Wisnicki himself admits that he wanted to do a more complete exam on September 16, 1997, including a slit lamp evaluation, but that he failed to do it. TT, 151-52. He concedes, moreover, that it would be a departure not to do a slit lamp examination if he had not ruled out a laceration with leaking of fluid. TT, at 140-42. Dr. Wisnicki admits that he had not ruled out a laceration of Adrian's right eye on September 16, 1997, and that there was fluid coming out of Adrian's right eye. TT, at 141. This Court finds that Dr. Wisnicki admitted he departed by not performing a slit lamp evaluation on September 16, 1997.
Furthermore, Dr. Wisnicki's explanation for not completing the exam, that Adrian was uncooperative, is undercut by Dr. Wisnicki's own testimony. Dr. Wisnicki stated that he crossed out "no cooperation" on the chart because by the time Adrian came to him on September 16, 1997, he was somewhat cooperative. TT, 119-20. He also stated that, if the situation warranted, he could put Adrian under anesthesia to complete the exam. TT, at 96-97, 124-25.
Plaintiffs also alleged that Dr. Wisnicki was negligent in failing to re-examine Adrian until two weeks after the initial visit had passed because, during that time, Adrian's iris prolapsed. Aff., at 18. Plaintiffs presented the testimony of Dr. Schutz, among others, to support this allegation. Dr. Schutz testified that Adrian's iris was not prolapsed on September 16, 1997, but that, based on the evidence, between visits to Dr. Wisnicki, Adrian's iris prolapsed. TT, at 475. The doctor points to the charts, which show no prolapse on September 16, 1997, and that the iris was pushed up against the endothelium and was nasally updrawn on September 30, 1997. TT, at 143. This Court finds that Dr. Schutz's testimony was persuasive and legally sufficient to support plaintiffs' claims. Although Dr. Schutz has testified in court over fifty times, this is only second time he has testified for plaintiffs. TT, at 695, 732. Furthermore, although Dr. Wisnicki is correct that Dr. Schutz's subspecialty is not corneas, TT, at 699, the doctor teaches how to treat lacerated corneas, and therefore, his expertise is relevant to this case. TT, at 729-730.
Dr. Schutz's testimony is also supported by other doctors, including defendants Dr. Buxton and Dr. Cavalieros. TT, at 363 (Dr. Buxton states iris prolapsed); TT, at 972 (Dr. Cavalieros states iris prolapsed). Furthermore, Dr. Parikh, Dr. Wisnicki's expert and a second-year resident, does not dispute this finding. Although Dr. Parikh states that Adrian's eye was "quiet" (not red) on September 30, 1997, he never states that "quiet" is inconsistent with the iris being prolapsed. TT, at 1108.
Dr. Flynn Dr. Wisnicki's expert was inappropriate, unprofessional and, most importantly, his testimony was insufficient. Dr. Flynn had to be admonished several times by the Court. TT, at 1125. For example, the Court warned Dr. Wisnicki's attorney, "He's not paying attention to the question. He's not giving evidence." TT, at 1135 (in robing room). Later, this Court again had to admonish Dr. Wisnicki's attorney to control his witness, "The problem with this expert is getting to really another motion that can be made. * * * If that's his personality, you should get another expert. * * * This is not appropriate." TT, at 1176 (in robing room). Dr. Flynn repeatedly grimaced, rolled his eyes and smirked at the jury. TT, at 1179. In fact, this Court had to address the jury on this matter, explaining "Jurors, any nonverbal action on the part of any witness or attorney is inappropriate in this court of law." TT, at 1180.
Furthermore, Dr. Flynn failed to testify to a "reasonable degree of medical certainty." He repeatedly said, "I believe," and failed to present medical evidence and case studies to support his opinion. Additionally, Dr. Flynn presented a theory of the case that was contrary to any evidence. For example, Dr. Flynn testified Adrian's injuries were caused by gunshot, shrapnel or firecracker accident, not by hitting the corner of a table. TT, at 1219.
Finally, this Court had the opportunity, during trial, to observe the present condition of Adrian's eyes and to view each of Adrian's glasses from the time of accident until now. TT, at 813-15.
Upon on review of the foregoing, this Court finds that the weight of a fair interpretation of the credible evidence strongly favors a finding that Dr. Wisnicki did depart from accepted medical practice in improperly diagnosing Adrian on September 16, 1997, failing to do a slit lamp evaluation on September 16, 1997, and setting Adrian's second appointment two weeks after the first, during which time Adrian's iris prolapsed. Accordingly, the jury's verdict with respect to Dr. Wisnicki and Beth Israel is set aside and a new trial is granted.
In addition to all the reasons already set forth, this Court sets aside the jury verdict with respect to Dr. Wisnicki and Beth Israel in the interests of justice. See, Micallef v. Miehle Co., 39 NY2d, at 381; McCarthy v. Port of New York Authority, 21 AD2d, at 127.
First, the Court finds that Dr. Wisnicki's expert, Dr. Flynn, was a distraction to the jury. Dr. Flynn had to be admonished several times by the Court and plaintiffs' attorney moved to strike Dr. Flynn's testimony. TT, at 1233. While the Court did not grant plaintiffs' motion because to do so would be to deprive Dr. Wisnicki of any expert testimony at trial, this Court believes that Dr. Flynn's behavior before the jury inappropriately influenced them. Id. For example, Dr. Flynn mocked plaintiffs' attorney and said, "Are you going to object, counsel?" TT, at 1165. The jury responded with laughter. Id. Also, Dr. Flynn guffawed and hee-hawed in response plaintiffs' questions. The Court responded, "This is the same type of issue we had this morning and the same issue I admonished him on, the same issue I warned [Dr. Wisnicki's attorney] that I'm on the verge of striking his entire testimony * * *." TT, at 1232 (in robing room).
Later, the Court had to admonish Dr. Flynn because he was mocking the Judge. "Doctor, this is a Court of law. * * * Whenever I make a ruling, it is not appropriate for you to, in a sense, motion to the jury, put your eyes up and do certain kinds of grimaces to them." TT, at 1179 (in the robing room). Although the Court made a corrective instruction to the jury, this Court cannot determine whether Dr. Flynn's flagrant mockery of the judicial system in any way influenced the jury. See, TT, at 1180. Therefore, the interests of justice require a new trial.
The strong evidence of negligence and Dr. Flynn's repeated disrespect for the proceedings must also be considered along with Adrian's serious injuries. Since the accident, Adrian has required two surgeries: one for a cataract and one to treat glaucoma. Aff., at 6. Additionally, Adrian currently suffers from amblyopia (laziness) of the right eye and has peripheral scarring of his right cornea with an irregular astigmatism. TT, at 537. Each day Adrian must wear an eye patch for three hours, and he must always wear glasses. TT, at 839. Furthermore, he is at risk for developing sympathetic ophthalmia (inflammation inside the eye), which could cause his to become blind. TT, at 547.
This Court finds that Adrian's injuries are severe and that he will, in all likelihood, require costly long-term treatment. This fact coupled with the strong weight of the evidence in favor of the plaintiffs mandates that this Court set aside the jury's verdict of finding no liability on the part of Dr. Wisnicki and his employer Beth Israel and that the Court Order a new trial.
Accordingly, it is
ORDERED that plaintiffs' motion to set aside the jury's verdict with respect to Dr. Wisnicki and Beth Israel is granted; and it is further
ADJUDGED that a new trial is ordered with respect to the liability of Dr. Wisnicki and Beth Israel.