Opinion
June 13, 1995
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
The trial court erred in setting aside the verdict for defendant Dr. Melone, the treating physician. The evidence adduced at trial did not so favor plaintiff that the jury's verdict could not have been reached by any fair interpretation of such evidence ( Gianniosis v. LID Mgt. Finishing Serv. Co., 194 A.D.2d 413; Martin v. McLaughlin, 162 A.D.2d 181, 184). Contrary to the trial court's findings, the record included expert testimony supporting the view that the treatment provided by Dr. Melone was not a departure from good medical practice, and the jury's determination that he not be held liable was a reasonable one. A trial court's decision to set aside a jury's verdict is entitled to great deference ( Yalkut v. City of New York, 162 A.D.2d 185, 188; Nicastro v. Park, 113 A.D.2d 129, 137), but was unwarranted here where the jury merely resolved the conflict in expert testimony as it was entitled to do ( see, Matter of New York County DES Litig. [Cardinale Abbott Labs.], 211 A.D.2d 500, 501; Laniado v. New York Hosp., 168 A.D.2d 341, lv denied 78 N.Y.2d 853), and did so reasonably. The fact-finding function of the jury must also be afforded great deference by a trial court ( Bander v. Grossman, 161 Misc.2d 119, 122, citing Martin v McLaughlin, supra).
The plaintiff's contention that a treating physician is generally responsible for all aspects of the patient's medical care cannot serve to impose liability upon Dr. Melone as a matter of law ( see, Markley v. Albany Med. Ctr. Hosp., 163 A.D.2d 639, 640; Kleinert v. Begum, 144 A.D.2d 645, 647), notwithstanding the dictum of Cornish v. De Palma ( 210 A.D.2d 35). Plaintiff's failure to cross-appeal the jury's exoneration of Dr. Moskowitz, who was her primary treating physician and who referred her to Dr. Melone for surgery, precludes our consideration of the strong arguments regarding his liability.
Concur — Asch, J.P., Nardelli, Williams and Mazzarelli, JJ.