Opinion
No. 28224/2001.
2013-04-8
Sabrina REITZEL and Matthew Reitzel, Plaintiff(s), v. Theodore HALE, MD, Medical Arts Obstetrics & Gynecology, P.C., Defendant(s).
John L. Juliano, Esq., Hillside Building, East Northport, NY, attorney for plaintiffs. Shaub, Ahmuty, Citrin & Spratt, LLP, by William G. Spratt, Lake Success, NY, attorneys for defendants.
John L. Juliano, Esq., Hillside Building, East Northport, NY, attorney for plaintiffs. Shaub, Ahmuty, Citrin & Spratt, LLP, by William G. Spratt, Lake Success, NY, attorneys for defendants.
H. PATRICK LEIS, J.
Upon the reading of the following papers: (1); Notice of Motion dated May 31, 2012, by plaintiffs including supporting papers and exhibits; (2) Affirmation In Opposition dated August 8, 2012 by defendants including supporting papers and exhibits; (3) Reply Affirmation dated September 12, 2012 by plaintiff including exhibits; (4) Oral Argument held in this Court on February 7, 2013; and now,
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the plaintiff's motion pursuant to CPLR Rule 4404(a) to set aside the verdict is denied.
The plaintiff brings this CPLR Rule 4404(a) motion to set aside a medical malpractice verdict rendered in this case on May 11, 2012, as contrary to the weight of the evidence and in the interest of justice.
It is undisputed that the plaintiff, Sabrina Reitzel, entered the hospital on January 7, 2001, to give birth and that her obstetrician, defendant Dr. Theodore Hale, determined that a Cesarian Section was necessary. Further, it is undisputed that during the Cesarian Section performed on January 8, 2001, the plaintiff began to hemorrhage and the defendant Dr. Hale performed a Supracervical Hysterectomy and removed the plaintiff's uterus. Sometime after being released from the hospital, the plaintiff experienced problems relating to urine flow and incontinence, and required a nephrostomy and subsequent re-implantation of her left ureter.
The plaintiff also moved to set aside the verdict as inconsistent. That requested relief, however, was voluntarily withdrawn at oral argument as it was not raised before the jury was discharged and, thus, is unpreserved for this Court's consideration.
At issue are two separate sets of questions relating to theories of liability. First, pursuant to question number 5 on the verdict sheet, the jury found by a fair preponderance of the credible evidence that the defendant Theodore Hale, M.D. departed from good and accepted medical practice in the manner in which he attempted to control the maternal hemorrhage. Pursuant to question number 6, however, the jury found that this departure was not a substantial factor in causing plaintiff Reitzel's injuries, to wit: a hysterectomy which resulted in the removal of the plaintiff's uterus thereby rendering her unable to bear children.
Next, pursuant to question number 7, the jury found by a fair preponderance of the credible evidence that the defendant Theodore Hale, M.D. departed from good and accepted medical practice by not identifying and protecting the plaintiff's left ureter during the Cesarean Section and Supracervical Hysterectomy performed on Jan 8, 2001. It went on to find pursuant to question number 8, however, that this departure was not a substantial factor in causing the plaintiff's injuries, to wit: damage to her left ureter resulting in a nephrostomy and subsequent re-implantation of the left ureter.
A jury verdict in favor of a defendant may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (Landau v. Rappaport, 306 A.D.2d 446 [2d Dept 2003]; Nicastro v. Park, 113 A.D.2d 129, 134 [2d Dept 1985] ). “A jury finding that a party was negligent but that such negligence was not a proximate cause of an incident is inconsistent and against the weight of the evidence when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Ferrante v. County of Nassau, 301 A.D.2d 565, 566 [2d Dept 2003] ). The test is not whether the jury erred in weighing the evidence presented, but whether any viable evidence exists to support the verdict (Cambridge Assocs. v. Town of North Salem, 282 A.D.2d 702 [2d Dept 2001]; 370 Hamilton Ave. Corp. v. Allied Outdoor Advertising, Inc., 258 A.D.2d 517 [2d Dept 1999]; Matter of Tokarz, 199 A.D.2d 400 [2d Dept 1993] ).
The plaintiff argues that the jury's finding that Dr. Hale was negligent in the way he tried to control the plaintiff's bleeding but that this negligence was not a proximate cause of the plaintiff's injuries, is against the weight of the evidence and not based on a fair interpretation of the evidence. She asserts that the finding of negligence in the manner in which the defendant attempted to control the hemorrhage is so inextricably interwoven with her injuries (the hysterectomy and inability to bear children) as to make it impossible to find negligence without also finding that such negligence was a proximate cause of these injuries.
At trial, the jury found (in question number 5) that defendant Dr. Hale departed from good and accepted medical practice by not utilizing the appropriate standard(s) of care in the manner in which he attempted to control the plaintiff's bleeding. This finding of negligence is not being challenged by the defendant. Furthermore, all experts and witnesses agreed that the failure to stop the plaintiff's bleeding necessitated the removal of her uterus and resulted in her inability to bear children. In her moving papers, the plaintiff argues that her expert opined that good and accepted medical practice required that Dr. Hale attempt to control the hemorrhage by suturing the uterine artery and if that failed, by suturing the hypogastric arteries which feed the uterine arteries. In addition, all experts agreed that when the bleeding started, good and accepted medical practice required that uterotonics such as Methergine, Carboprost and Pitocin, be administered to cause the uterus to contract. The plaintiff's theory was that had the defendant Doctor utilized the correct methods, he would have controlled the bleeding and it would not have been necessary to remove her uterus.
Dr. Hale testified that the first thing he did in an attempt to stop the bleeding was give all three uterotonics: Methergine, Carboprost and Pitocin.
Dr. Hale further stated that while he did not attempt to suture the hypogastric arteries, he did attempt to suture the uterine artery. He also said that when his attempts to stop the hemorrhaging failed, he had to immediately perform a hysterectomy in order to save plaintiff's life because she had already lost approximately 50% of her blood. Moreover, Dr. Hale testified that in this particular case, performing ligation upon any other arteries or veins (i.e. a hypogastric ligation) would not have stopped the obstetrical hemorrhage. In addition, the defendant's expert testified that performing a hypogastric ligation would not have been appropriate under these circumstances as the plaintiff could have bled to death before the procedure was completed. The defense expert stated that a hypogastric ligation is an extremely dangerous procedure because the hypogastric artery is located in close proximity to the hypogastric vein and any attempt to ligate the hypogastric artery could result in a tear to the hypogastric vein and thereby exacerbate the hemorrhage. The defendant's expert testified that a doctor has a very short period of time to stop obstetrical bleeding, and that any positive impact that performing a hypogastric ligation could have had on controlling the bleeding would have been outweighed by the dangers involved in the procedure and the time it would have taken to perform.
However, not one witness, including the defendant's own expert, could find any reference or proof in the medical or hospital records that any of these medications were in fact given.
The court's duty is to examine the evidence in a way that will sustain the jury's verdict because if there exists any viable evidence to support the verdict, the successful party is entitled to the presumption that the jury adopted that view ( see Cambridge Assocs. v. Town of North Salem, 282 A.D.2d 702;Jankauskas v. Sandberg, 71 AD3d 1090, 1091 ). Unfortunately, the analysis in this case is made more difficult because question number 5 on the verdict sheet, to which all parties agreed, combined the three separate theories of negligence regarding the different methods that should have been employed by Dr. Hale to stop the obstetrical hemorrhage. As these three theories (administering uterotonics, suturing the uterine artery, and suturing the hypogastric arteries) were not addressed separately by the jury, this court is unable to discern which of the three theories of negligence the jury found against Dr. Hale. Hence, the court is left with the unenviable task of fashioning a reasonable interpretation of the evidence, if possible, that supports the verdict even though such interpretation may not be consistent with what the jury actually found the facts to be.
Accordingly, the court finds that, given Dr. Hale's testimony that he administered the uterotonics and attempted to suture the uterine artery, the jury could have found negligence based upon Dr. Hale's admitted failure to ligate the hypogastric arteries. Furthermore, the jury could have rationally concluded that this failure or departure was not a proximate cause of the hysterectomy and the resulting injuries to the plaintiff as the testimony of Dr. Hale and his expert demonstrated the ineffectiveness of and dangers posed by performing a hypogastric ligation. Specifically, the defendant's evidence established, if believed, that ligating the hypogastric arteries would not have prevented the need for a hysterectomy because Dr. Hale indicated that it would not have stopped the bleeding. The defendant's evidence also showed that such a procedure could have resulted in the tearing of the hypogastric vein thereby causing more uncontrolled bleeding, and it could have resulted in the plaintiff's death due to further blood loss even if it were successfully performed.
While the plaintiff's interpretation of the evidence as discussed in her moving papers might suggest a more plausible interpretation, disputed testimony of the parties and their medical experts presents issues of credibility to be resolved by the jury, not this court (Casimir v. Bar–Zvi, 36 AD3d 578; 2d Dept 2007]; Murray v. Maniatis, 21 AD3d 1012 [2d Dept 2005]; Gerdik v. Van Ess, 5 AD3d 726 [2d Dept 2004] ). The test is not whether the jury was wrong in how much weight it accorded the evidence presented or whether this court would have made different credibility determinations, but whether any viable evidence exists to support the verdict (Casimir v. Bar–Zvi, 36 AD3d at 578;Cambridge Assocs. v. Town of North Salem, 282 A.D.2d at 702;370 Hamilton Ave. Corp. v. Allied Outdoor Advertising, Inc., 258 A.D.2d at 517;Matter of Tokarz, 199 A.D.2d at 400). Since the verdict can be reconciled with a reasonable view of the evidence, the defendant is entitled to the presumption that the jury adopted that view (Jankauskas v. Sandberg, 71 AD3d at 1091). Therefore, the court is constrained to uphold the verdict regarding question number 6.
Turning to the next issue presented in the plaintiff's motion to set aside the verdict, the jury found in answering question number 7 that Dr. Hale was negligent in not identifying and protecting the plaintiff's left ureter during the Cesarean Section and Supracervical Hysterectomy. That finding is not being challenged by the defendant. In question number 8, however, it determined that this negligence was not the proximate cause of the plaintiff's injuries, to wit: a nephrostomy and subsequent re-implantation of the ureter. The court agrees with the defendant that the jury's finding can be reconciled with a reasonable view of the evidence. The evidence established that the doctors involved in the plaintiff's treatment disagreed as to whether the need for the nephrostomy and subsequent re-implantation of the ureter was caused by Dr. Hale's surgery (Jankauskas v. Sandberg, 71 AD3d at 1091;Casimir v. Bar–Zvi, 36 AD3d at 578). In addition, it is uncontroverted that the plaintiff did not complain of incontinency or urinary flow issues during her initial stay in the hospital following the surgery as would be expected if such damages were caused by said surgery. Indeed, she did not complain for two weeks. Furthermore, while the physician who performed the nephrostomy concluded that her ureter injury was “possibly” due to a ligation or clamp (stemming from the hysterectomy), a different physician who performed her subsequent re-implantation concluded, after operating on the area in issue, that extensive fibrosis or scar tissue caused the injury to the plaintiff's left ureter. Thus, there is a reasonable view or fair interpretation of the evidence that supports the jury's conclusion that Dr. Hale's negligence (not identifying and protecting the plaintiff's left ureter) was not a proximate cause of the injury to her ureter.
Finally, a motion to set aside a verdict in the interest of justice “encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” ( Allen v. Uh, 82 AD23d 1025 [2d Dept 2011] ). In order for this court to set aside the verdict in the interest of justice in this case, the plaintiff must present evidence that “substantial justice has not been done, as would occur, for example, where the trial court erred in ruling on the admissibility of evidence, there is newly-discovered evidence, or there has been misconduct on the part of attorneys or jurors' “ (Rodriguez v. City of New York, 67 AD3d 884 [2d Dept 2009] quoting Gomez v. Park Donuts, 249 A.D.2d 266, 267 [2d Dept 1998] ). Such a showing has not been made or even argued. Therefore the court cannot set this verdict aside in the interest of justice.
Accordingly, the plaintiff's motion is denied in all respects.
The above constitutes the decision and judgment of the court.