Summary
In Charell v. Gonzalez, 251 AD2d 72 (1st Dept. 1998), the court vacated an award for punitive damages after finding that defendant's conduct was neither grossly dishonest or indifferent to patient care, thereby establishing that had the opposite been true, the award would have stood.
Summary of this case from Lott-Coakley v. Ann-Gur Realty Corp.Opinion
June 9, 1998
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
In this action for medical malpractice and lack of informed. consent in connection with plaintiffs decision to forgo conventional chemotherapy/radiation treatments for her cancer and instead follow defendants alternative nutritional regimen, the jury found defendant 51% liable for plaintiffs injuries and plaintiff 49% liable for her injuries, based on its conclusion that the treatment provided by defendant was a departure from good and accepted medical practice, which departure was a proximate cause of plaintiffs injuries. The jury also premised its verdict upon the finding that defendant failed to provide plaintiff with appropriate information with respect to the risks of the treatment he offered and the alternatives thereto. It further found that a reasonably prudent person in plaintiffs position would not have agreed to the course of treatment offered by defendant if appropriately advised, but that, even without the benefit of proper advice, plaintiff, at least impliedly, assumed some of the risk of injury entailed, by her election to undergo defendants alternative therapy.
According due deference to the jury's determination, which was based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, it cannot be said that the evidence. so preponderated in favor of defendant that the jury could not have reached its conclusion based upon any fair interpretation of the evidence ( Arpino v. Jovin C. Lombardo, P. C., 215 A.D.2d 614, 615). We conclude, then, that the verdict with respect to liability was supported by sufficient evidence and was not against the weight of the evidence ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499; Nicastro v. Park, 113 A.D.2d 129). In this connection, we are of the view that, based upon the evidence that plaintiff refused the treatment plan recommended to her by conventional oncological specialists and elected instead to follow defendants alternative protocol, the jury's finding that plaintiff impliedly accepted a substantial part of the risk entailed by the alternative protocol is sustainable, notwithstanding the jurys concurrent finding that defendant did not discharge his duty to advise plaintiff respecting the risks of pursuing the alternative protocol.
We modify only to the extent of vacating the award of punitive damages. Defendants conduct was not so wantonly dishonest ( Moskowitz v. Spitz, 243 A.D.2d 357), grossly indifferent to patient care ( Pascazi v. Pelton, 210 A.D.2d 910), or so malicious. and/or reckless ( see, Camillo v. Geer, 185 A.D.2d 192) as to warrant such an award. We have considered the parties remaining contentions for affirmative relief and find them to be without merit.
Concur — Ellerin, J. P., Nardelli, Rubin, Andrias and Saxe, JJ.
[ See, 173 Misc.2d 227.]