Opinion
2015–12520, 2016–03881 Index No. 601321/09
10-03-2018
Anthony BIANCO, etc., respondent, v. Steven R. SHERWIN, appellant.
Farley, Holohan & Glockner, LLP (Martin Clearwater & Bell LLP, New York, N.Y. [Barbara D. Goldberg ], of counsel), for appellant. Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Joseph P. Awad of counsel), for respondent.
Farley, Holohan & Glockner, LLP (Martin Clearwater & Bell LLP, New York, N.Y. [Barbara D. Goldberg ], of counsel), for appellant.
Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Joseph P. Awad of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for medical malpractice, the defendant appeals from (1) an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered October 27, 2015, and (2) a judgment of the same court entered February 22, 2016. The order denied the defendant's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and against the defendant and for judgment as a matter of law dismissing the complaint or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial on the issue of liability or for a new trial on the issue of damages unless the plaintiff stipulated to a reduction in the damages award. The judgment, upon the jury verdict, and upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $1,750,000.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho , 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ; Matter of Aho , 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
The plaintiff, an infant, by his mother and natural guardian, commenced this medical malpractice action alleging that the defendant obstetrician improperly used vacuum extraction to deliver the plaintiff. As a result, the plaintiff allegedly sustained brain injuries which caused permanent neurocognitive deficits. The matter proceeded to trial and the jury rendered a verdict in favor of the plaintiff and against the defendant. The defendant thereafter moved pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law dismissing the complaint or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial on the issue of liability or for a new trial on the issue of damages unless the plaintiff stipulated to a reduction in the damages award. The Supreme Court denied the motion, and entered judgment in favor of the plaintiff and against the defendant in the principal sum of $1,750,000. The defendant appeals.
" ‘A motion for judgment as a matter of law pursuant to CPLR ... 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party’ " ( Messina v. Staten Is. Univ. Hosp. , 121 A.D.3d 867, 867, 994 N.Y.S.2d 644, quoting Tapia v. Dattco, Inc. , 32 A.D.3d 842, 844, 821 N.Y.S.2d 124 ; see Gaspard v. Aronoff , 153 A.D.3d 795, 796, 61 N.Y.S.3d 240 ). Similarly, a jury verdict may not be set aside "as against the weight of the evidence unless ‘the evidence so preponderate[d] in favor of the [moving party] that it could not have been reached on any fair interpretation of the evidence’ " ( Killon v. Parrotta , 28 N.Y.3d 101, 107, 42 N.Y.S.3d 70, 65 N.E.3d 41, quoting Lolik v. Big V Supermarkets , 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ; see Gaspard v. Aronoff , 153 A.D.3d at 796, 61 N.Y.S.3d 240 ; Messina v. Staten Is. Univ. Hosp. , 121 A.D.3d at 868, 994 N.Y.S.2d 644 ). " ‘[T]he discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict’ " ( Nikollbibaj v. City of New York , 106 A.D.3d 789, 790–791, 964 N.Y.S.2d 619, quoting Nicastro v. Park , 113 A.D.2d 129, 133, 495 N.Y.S.2d 184 ).
"In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" ( Stukas v. Streiter , 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ; see Gaspard v. Aronoff , 153 A.D.3d at 796, 61 N.Y.S.3d 240 ; Brown v. Shah , 109 A.D.3d 948, 949, 971 N.Y.S.2d 570 ). Expert opinion is generally necessary to prove a deviation from accepted standards of medical care or adherence thereto and to establish proximate cause (see Gaspard v. Aronoff , 153 A.D.3d at 796, 61 N.Y.S.3d 240 ; Brown v. Shah , 109 A.D.3d at 949, 971 N.Y.S.2d 570 ; Sushchenko v. Dyker Emergency Physicians Serv., P.C. , 86 A.D.3d 638, 639, 929 N.Y.S.2d 492 ).
Here, the plaintiff presented expert testimony that the defendant departed from good and accepted medical practice by making multiple attempts to deliver him with a vacuum extractor, and by using the vacuum extractor to rotate him from an occiput posterior position to an occiput anterior position. Upon his delivery, the plaintiff was noted to have several head injuries, including bleeding between his scalp and his skull, as well as an abnormal neurological examination. The plaintiff's experts opined that the manner in which the defendant performed the vacuum extraction caused the plaintiff to sustain a brain injury, which resulted in permanent neurocognitive deficits. Accordingly, there was legally sufficient evidence that the defendant departed from good and accepted standards of medical practice by improperly performing the vacuum extraction of the plaintiff and that the defendant's improper performance of the vacuum extraction caused the plaintiff's injuries (see Gaspard v. Aronoff , 153 A.D.3d at 797, 61 N.Y.S.3d 240 ; Messina v. Staten Is. Univ. Hosp. , 121 A.D.3d at 868, 994 N.Y.S.2d 644 ).
The jury's verdict was not against the weight of the evidence (see Gaspard v. Aronoff , 153 A.D.3d at 797, 61 N.Y.S.3d 240 ; Messina v. Staten Is. Univ. Hosp. , 121 A.D.3d at 868, 994 N.Y.S.2d 644 ). The parties presented conflicting expert opinions, which raised credibility issues for the jury to resolve (see Gaspard v. Aronoff , 153 A.D.3d at 797, 61 N.Y.S.3d 240 ; Giammarino v. Carlo , 144 A.D.3d 1086, 1087, 42 N.Y.S.3d 279 ). The jury had the opportunity to see and hear each witness testify and we discern no reason to disturb their credibility determinations (see Gaspard v. Aronoff , 153 A.D.3d at 797, 61 N.Y.S.3d 240 ; Messina v. Staten Is. Univ. Hosp. , 121 A.D.3d at 868, 994 N.Y.S.2d 644 ).
The defendant's contention that the jury's verdict was inconsistent is not properly before this Court, since an objection on that ground was not raised before the jury was discharged and the issue was not raised until the defendant moved to set aside the verdict (see Barry v. Manglass , 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125 ; Reitzel v. Hale , 128 A.D.3d 1045, 1046, 9 N.Y.S.3d 659 ; Frenchman v. Westchester Med. Ctr. , 77 A.D.3d 618, 619, 909 N.Y.S.2d 107 ; Lovett v. Interfaith Med. Ctr. , 52 A.D.3d 578, 580, 860 N.Y.S.2d 172 ).
The damages award does not deviate materially from what would be considered reasonable compensation (see CPLR 5501[c] ).
The defendant's remaining contention is without merit.
Accordingly, the defendant's motion was properly denied.
DILLON, J.P., CHAMBERS, HINDS–RADIX and CHRISTOPHER, JJ., concur.