Opinion
1696/03.
Decided February 9, 2007.
Plaintiffs' attorneys were Edward L. Birnbaum and Michael B. Sena of Herzfeld Rubin, PC and defendant's attorney was John W. Sullivan of Wilson, Elser, Moskowitz, Edelman Dicker LLP.
Upon the foregoing papers, and after oral arguments heard, defendants move for an order (1) pursuant to CPLR § 4404(a) granting defendants judgment notwithstanding the verdict on the ground that plaintiffs failed to establish a prima facie case, or alternatively, a new trial on the ground that the verdict was against the weight of the evidence, or (2) dismissing the action on the ground that the damages awarded are "so outrageous" that no reasonable jury could have arrived at its conclusion, or (3) pursuant to CPLR 5501(c) granting defendants a new trial on damages on the ground that the damage award materially deviated from reasonable compensation, and (5) directing a hearing to determine the discount rate to be applied in calculating the structured judgment and the amount of any collateral source payments pursuant to CPLR 4545. Defendants' motion was denied on January 10, 2007, with a written decision to follow. The Court's reasons for the denial are as follows.
Plaintiff Dennis Novick and his wife, derivatively, commenced this medical malpractice action on or about January 16, 2003, following injuries plaintiff sustained after undergoing a laparoscopic radical prostatectomy ("LRP"). At trial, plaintiff testified that after being diagnosed with prostate cancer, he met with defendant Dr. Ciril Godec, the Chair of the Urology Department at defendant Long Island College Hospital ("LICH"). Dr. Godec participated in a "bloodless program" at LICH designed for patients, like plaintiff, who wanted to avoid blood transfusions. When plaintiff asked about removing the prostate laparoscopically, Dr. Godec informed him that defendant Dr. Bertrand Guillonneau, a French surgeon, was expected to demonstrate the procedure at LICH and that he would call Dr. Guillonneau on plaintiff's behalf to perform the surgery. Dr. Guillonneau agreed and on March 24, 2001, plaintiff underwent an LRP under the supervision of Dr. Godec.
During the surgery, Dr. Guillonneau removed plaintiff's prostate and closed the remaining gap between the urethra and the bladder neck with a sutured anastomosis. After the anastomosis was completed, it was discovered that a needle used during the procedure was missing. An x-ray revealed that the missing needle was in plaintiff's pelvis and Dr. Guillonneau re-entered plaintiff's abdomen laparoscopically to search for the needle. In doing so, he discovered that the needle was behind the sutured anastomosis. Dr. Guillonneau disconnected the sutured anastomosis, retrieved the needle, and attempted to resuture the anastomosis. However, he was unable to do so since the tissue surrounding the anastomosis was fragile and shredded as he attempted to knot the sutures. Unable to reconstruct the anastomosis, Dr. Guillonneau and Dr. Godec decided to use a traction catheter to join the bladder neck with the urethra. As a result, plaintiff suffered strictures and incontinence, requiring a series of transurethral resections of the bladder neck ("TURBN") to alleviate the blockage.
After trial, the jury returned a verdict in plaintiffs' favor and awarded plaintiff Dennis Novick $1,000,000 in past pain and suffering and $1,500,000 in future pain and suffering over 20 years. The jury also awarded plaintiff Gilda Novick $100,000 for past loss of services and $50,000 for future loss of services over 20 years. Defendants now move for, among other things, an order granting them judgment notwithstanding the verdict on the ground that the jury's verdict, as a matter of law, was not supported by sufficient evidence. Defendants argue that (1) the loss of the needle was not a departure, but an accepted risk of the procedure, (2) plaintiffs failed to demonstrate that defendants retrieved the needle improperly or that the loss of the needle caused plaintiff's injuries, (3) plaintiffs failed to show that the absence of a sutured anastomosis caused plaintiff's strictures, and (4) nothing in the evidence demonstrated that conversion to an open procedure would have avoided plaintiff's injuries, since the tissue surrounding the bladder neck and urethra was fragile.
Pursuant to a stipulation, defendant agreed to pay plaintiffs a set amount in past medical expenses in the event the jury returned a verdict in plaintiffs' favor.
"To sustain a determination that a jury verdict is not supported by sufficient evidence, as a matter of law, there must be no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial'" ( Nicastro v. Park, 113 AD2d 129, 132 [2d Dept. 1985], quoting Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499). In deciding whether a jury's verdict is legally sufficient, the trial court must view the evidence in a light most favorable to the prevailing party, giving the prevailing party the benefit of every favorable inference that can reasonably be drawn from the evidence ( Szczerbiak v. Pilat, 90 NY2d 553, 556).
Here, viewing the evidence in the light most favorable to the plaintiffs, the Court concludes that jury's verdict was supported by legally sufficient evidence. Plaintiffs' expert, Dr. Gene Rosenberg, testified on each of the seven departures found by the jury, and that these departures were a substantial factor in causing plaintiff's injury. He explained that after the prostate is removed, the bladder and urethra must be connected by a water-tight, sutured anastomosis. Without a sutured anastomosis, urine could leak into the body causing scarring. Dr. Rosenberg opined that a sutured anastomosis is required in every prostatectomy and that the absence of one in plaintiff caused his strictures. He further opined that defendants' use of a traction catheter in place of a sutured anastomosis was not accepted in the urologic community, and that the catheter caused plaintiff's scarring, making it difficult for him to pass urine. Dr. Rosenberg explained that after the traction catheter was used, plaintiff's urethra and bladder neck separated, causing strictures to form.
As for the lost needle, Dr. Rosenberg concluded that it was a departure not to convert to an open procedure once the needle could not be located laparoscopically. He explained that had Dr. Guillonneau converted to an open procedure, he could have manually checked for the needle without disconnecting the anastomosis. By disconnecting the anastomosis in his search for the needle, Dr. Guillonneau shredded the tissue surrounding the anastomosis and was unable to resuture it.
To the extent defendants argue that it was not a departure to lose the needle, it should be noted that the jury did not return a verdict on whether the loss of the needle was a departure. Instead, the jury found that the failure to examine the needle driver after its removal from plaintiff's body was a departure. The jury's determination was based on Dr. Rosenberg's testimony that had the driver been examined each time it was removed, the missing needle would have been discovered sooner, thereby obviating the disassembly of the anastomosis.
Finally, there was ample evidence that conversion to an open procedure would have avoided plaintiff's injuries. Dr. Rosenberg explained that once the anastomosis was disassembled, the urethra retracted from the bladder neck, making it difficult to resuture laparoscopically. Had defendants converted to an open procedure, they could have pushed the bladder down into the pelvis and, using a longer needle, could have resutured the anastomosis. According to Dr. Rosenberg, any blood loss resulting from an open procedure would have been minor since plaintiff's blood vessels were ligated. Dr. Rosenberg further concluded that defendants could have conducted an open procedure post-operatively, and that it is possible to create an anastomosis in the period following the initial surgery before scar tissue has formed. In Dr. Rosenberg's opinion, defendants' failure to convert to an open procedure either during plaintiff's surgery or in the period following plaintiff's surgery was a departure from accepted medical practices and proximately caused plaintiff's injuries. In light of Dr. Rosenberg's testimony, the Court finds no basis to set aside the verdict as a matter of law.
Nor should the verdict be set aside as against the weight of the evidence. A trial court's discretion to set aside a jury verdict as against the weight of the evidence should be exercised cautiously, and only where "the jury could not have reached the verdict on any fair interpretation of the evidence'" ( Casimir v. Bar-Zvi, ___ AD3d ___, 2007 NY Slip Op 00106 [2d Dept.], quoting Nicastro v. Park, 113 AD2d at 134). In deciding whether a verdict is based on a fair interpretation of the evidence, courts must accord "great deference" to the "fact-finding function of the jury, as it was in the foremost position to assess witness credibility" ( Moccia v. Chi , 18 AD3d 631 , 632 [2d Dept. 2005]).
Applying these principles here, the Court concludes that the jury's verdict was based on a fair interpretation of the evidence. Plaintiffs' expert testified, among other things, that defendants departed from accepted medical practices by (1) failing to convert to an open procedure in order to search for the needle, and (2) failing to convert to an open procedure in order to create a sutured anastomosis. The fact that Dr. Guillonneau and Dr. Godec testified that a conversion to an open procedure was inappropriate under the circumstances merely raised an issue of credibility that was properly resolved by the jury. The jury was entitled to credit the testimony of plaintiffs' expert over that of defendants' experts and the Court finds no basis to disturb that determination ( see Vona v. Wank, 302 AD2d 516 [2d Dept. 2003]).
As for the jury's damage award, while the Court finds no basis to dismiss the action, the Court nonetheless finds the amount awarded for plaintiff's past and future pain and suffering to be excessive. The amount of damages to be awarded for personal injuries is primarily a question of fact for the jury, "whose determination is entitled to great deference" ( Fryer v. Maimonides Medical Center, 31 AD3d 604, 608 [2d Dept. 2006]). Thus, a jury's award should not be disturbed, unless it deviates materially from what would be reasonable compensation ( id.).
Here, the jury's award for past and future damages deviated materially from reasonable compensation. The record clearly established that plaintiff was 65 years old at the time of the verdict and that his condition had gradually improved since his surgery. Although plaintiff, in the three years following the surgery, became incontinent and underwent numerous painful procedures to remove scar tissue, including 17 TURBNs and 20 cystoscopies, he testified that he is currently cancer free. Moreover, plaintiff acknowledged that while his condition has curtailed many of the activities enjoyed previously, he was able to return to his work as a landscaper eight weeks after the LRP and has since played paddle ball and taken trips to Yellowstone National Park and Florida to visit family. In light of the foregoing, the Court concludes that no more than $750,000 in past damages and $1 million in future damages would be reasonable compensation for plaintiff.
Plaintiffs' reliance on Jump v. Facelle ( 292 AD2d 501 [2d Dept. 2002]) in support of their claim to the contrary is misplaced. There, the Appellate Division upheld a jury award of $1,300,000 for past pain and suffering where plaintiff, following surgery for colorectal cancer, suffered a "popped" anastomosis, causing an outflow of feces from the surgical incision. As a result, plaintiff remained hospitalized for eight months prior to his death. During that time, plaintiff underwent eight major surgeries, including a permanent colostomy, was unable to walk, and suffered persistent abdominal infection, which ultimately caused plaintiff's death ( id. at 502-503). Here, in contrast, plaintiff's injuries, while serious, clearly were not as grave as those injuries sustained by plaintiff's decedent in Jump v. Facelle. While plaintiff's incontinence and numerous corrective procedures were painful, embarrassing, and humiliating, they did not render him incapacitated nor did they prevent plaintiff from working or doing some of the activities enjoyed previously.
As for the jury's award to plaintiff Gilda Novick for past and future loss of services, the Court finds no basis to disturb it. Contrary to defendants' claim, Ms. Novick was not required to submit proof of economic loss in order to recover damages for loss of services. "The concept of consortium includes not only loss of support or services, it also embraces such elements as love, companionship, affection, society, sexual relations, solace and more" ( Millington v. Southeastern Elevator Co., 22 NY2d 498, 502). Recovery for loss of services cannot be measured with precision, but rather involves a matter addressed to the sound discretion of the jury ( see Robinson v. Lockridge, 230 App Div 389, 391 [4th Dept. 1930]).
In this case, the jury's award for past and future loss of services is amply supported by the record. Ms. Novick testified that she had been married to her husband for 40 years. She described how she and her husband, prior to his surgery, enjoyed an active social life. They would meet with friends, take short trips, go for walks, and go to the movies. Since the surgery, however, Ms. Novick's relationship with her husband had changed. She testified that when her husband returned from the hospital, she helped him get in and out of bed, changed his clothing, emptied his urine bag, and changed his sheets, which were soiled with urine. Embarrassed by his condition, plaintiff no longer wished to entertain friends and preferred that his wife sleep upstairs while he slept downstairs. Under these facts, it cannot be said that the jury's award for past and future loss of services was excessive or unreasonable.
Finally, the Court denies defendants' request for a hearing to determine the discount rate to be applied in calculating the structured judgment and the amount of any collateral source payments pursuant to CPLR 4545. Plaintiffs have supplied an affidavit from an economist setting forth the discount rate to be applied and defendants have offered nothing in response to warrant a hearing. In addition, nothing in the record requires a collateral source hearing pursuant to CPLR 4545(c). Prior to the jury's verdict, the parties stipulated as to the amount to be awarded for past medical expenses and plaintiffs have not sought damages for future medical expenses. Thus, there is no basis to grant defendants' request for a hearing.
Accordingly, defendants' motion is denied. However, a new trial is ordered on the issue of plaintiff Dennis Novick's damages, unless he stipulates to accept a reduction in past damages from $1,000,000 to $750,000 and in future damages from $1,500,000 to $1,000,000. If plaintiff so stipulates, plaintiff shall submit on notice a proposed judgment reflecting the reduction in the award for past and future pain and suffering.
This constitutes the decision and order of this court.