Opinion
Index No. 805450/2016
12-22-2022
Ruth GIFFORDS, Fredric Giffords, Plaintiff v. Charles MELONE, Defendant.
Plaintiff, Ruth Leslie Giffords, and derivatively Frederic Giffords, move pursuant to CPLR 4404(a), to set aside the jury verdict rendered on April 12, 2022, and seek a new trial in the interest of justice on the basis that the jury's verdict is contrary to the weight of the evidence. Defendant opposes plaintiffs’ motion.
For the reasons set forth below, plaintiffs’ motion is denied.
BACKGROUND
Plaintiff, Ruth Leslie Giffords, first consulted defendant Charles P. Melone, Jr., M.D. ("Dr. Melone"), an orthopedic surgeon specializing in hand surgery, on April 15, 2013. Ms. Giffords presented with a history of Dupuytren's disease, causing contractures and pain and stiffness in the palm of her right hand. Ms. Giffords also presented to Dr. Melone with end stage osteoarthritis of the right metacarpophalangeal ("MP") joints of the index and middle fingers. Dr. Melone recommended that Ms. Giffords undergo a two-stage procedure to address the two diseases in her right hand.
The first stage of the procedure was performed at Beth Israel Medical Center ("BIMC") on May 9, 2013. In an effort to release the Dupuytren's contractures, selective fasciectomies of plaintiff's right palm, index and middle fingers were performed, together with a Z-plasty flap resurfacing. Thereafter, throughout 2013 Dr. Melone and his staff at BIMC continued to treat plaintiff.
The second stage of the surgical procedure was performed at BIMC on January 30, 2014, wherein silicone implants were placed in the MP joints of the index and middle fingers of plaintiff's right hand. During this surgery, Dr. Melone performed a number of intrinsic releases of the tendons and ligaments of the index and middle fingers, resurfaced the bones that were destroyed by the osteoarthritis, and placed silicone implants in the joints of the index and middle fingers. Plaintiff contends that Dr. Melone misaligned the silicone implants during this surgery, and that as a result, three revision procedures were required. These procedures were performed by Dr. Alton Barron, a nonparty hand surgeon, during the period from 2015-2017.
A jury trial commenced on April 1, 2022. The verdict sheet required the jury to decide: "[d]id the defendant CHARLES P. MELONE, JR., MD, depart from good and accepted standards of medical practice in the manner which he performed the surgery of January 30, 2014, on RUTH LESLIE GIFFORDS?" The jury answered "no". The verdict sheet also required the jury to decide the issue of lack of informed consent: "[d]id the defendant, CHARLES P. MELONE, JR., MD provide appropriate information before obtaining plaintiff, RUTH LESLIE GIFFORDS’ consent to perform the surgery on January 30, 2014?" The jury answered "yes". Based on the jury's verdict on April 12, 2022, on the issues of departure and lack of informed consent, the jury did not reach the issue of causation on these respective questions.
At the conclusion of the trial, plaintiff moved to set aside the verdict which the Court set down for oral argument on May 12, 2022, and which the Court now considers.
PENDING MOTION
CPLR 4404(a) provides in relevant part,
After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgement as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.
In support of the motion, plaintiff contends that there was a significant departure of the standard of medical care by defendant because the implants inserted during the January 30, 2014, surgery were too large and were misaligned. Additionally, plaintiff also argues that there was a total lack of informed consent by defendant.
Citing Rozon v Schottenstein , 2020 NY Slip Op 31938(U) [Sup Ct New York County 2020], where the Court denied defendant's motion to set aside the verdict, defendant, in opposition, argues that the jury's verdict was supported by the credible evidence adduced at trial, and "that no valid line of reasoning and permissible inferences could possibly lead a rational person to the conclusion that defendant [committed malpractice]", and that defendant had explained the risks, benefits and alternatives of the January 30, 2014 surgery.
DISCUSSION
The Court finds that the jury's verdict was based upon a fair interpretation of the credible evidence produced at trial, and was supported by the record (see Genza v Richardson , 2008 NY Slip Op 31939(U) [Sup Ct New York County, 2008] ). It is well-settled that to establish a prima facie case of medical malpractice, "a plaintiff must show not only that the doctor deviated from accepted medical practice but also that the alleged deviation proximately caused the patient's injury" ( Koeppel v Park , 228 AD2d 288, 289 [1st Dept 1996] ). "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury." ( Derdiarian v Felix Contr. Corp. , 51 NY2d 308, 315 [1st Dept 2017] ). The plaintiff must make this showing "via the presentation of expert testimony" ( Rivera v Jothianandan , 100 AD3d 542, 543 [1st Dept 2012] ), which must be "based on facts in the record or personally known" to the expert (see Guzman v 4030 Bronx Blvd. Assoc. L.L.C. , 54 AD3d 42, 49 [1st Dept 2008] ; see Rozon v Schottenstein , 2020 NY Slip Op. 31938(U), *10—11).
Here, plaintiffs have failed to show that, as a matter of law, "there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party" ( Collado v Plawner , 2010 NY Slip Op 32837(U) [Sup Ct New York County 2010] ).
On plaintiffs’ case in chief, plaintiff produced Dr. Robert Gluck, a board-certified hand surgeon, as an expert. Dr. Gluck testified that he reviewed the medical records and deposition testimony of Dr. Melone, together with the medical records of Dr. Barron, plaintiff's subsequent treating physician, and the expert affirmation of Dr. Jack Choueka, defendant's expert. He testified that based on his review of the medical records, deposition transcripts, and the expert affirmation of Dr. Choueka, Dr. Melone did not achieve the goal of plaintiff's January 30, 2014, hand surgery. Citing plaintiff's pre-operative, intraoperative, and post-operative x-rays, Dr. Gluck testified that the defendant improperly placed the implants in plaintiff's index and middle fingers during the January 30, 2014, surgery, and did not reduce pain and swelling, or improve the function in plaintiff's right hand. Dr. Gluck also testified that the standard of care in the field of hand therapy is for Medicare to allow three months of post-surgery physical therapy for plaintiff's procedure. He opined to a reasonable degree of medical certainty that the yearlong physical therapy prescribed by defendant did not work, and that plaintiff's complaints of her right hand persisted. Dr. Gluck testified that the revision surgeries performed by Dr. Barron were necessary to correct the improper placement of the implants in the middle and index fingers. Dr. Gluck also opined, to a reasonable degree of medical certainty, that the improper placements of the implants was a departure from accepted medical practice in the field of hand surgery and was the proximate cause of the plaintiff's chronic stiffness and deformity in her right hand, from the date of the January 30, 2014 surgery through the present time.
Notwithstanding Dr. Gluck's expert opinion, the verdict herein demonstrates that the jury accorded more weight to the opinion testimony of defendant's expert, Dr. Jack Choueka, a board- certified orthopedic surgeon. The case law is well-settled that "[t]he weight to be accorded the conflicting testimony of experts is "a matter ‘peculiarly within the province of the jury’ " ( Furia v Mellucci, 163 AD2d 88, 89 [1st Dept 1990], lv denied 77 NY2d 803 (1991), quoting Norfleet v.New York City Tr. Auth. , 124 AD2d 715, 716 [2d Dept 1986], lv denied 69 NY2d 605 [1987] ).
Dr. Choueka credibly testified as to the plaintiff's medical history leading up to defendant's treatment plan. Firstly, consistent with Dr. Melone's treatment plan, Dr. Choueka testified that plaintiff's treatment plan involved a two-stage procedure. Dr. Choueka testified that Dr. Melone implemented the first stage of his treatment plan by straightening the contractures, since Dupuytren's disease causes a thickening of the fascia under the skin causing the fabric of the tissue to tighten, bending of the fingers, and a pulling apart of the joints. As to the second stage of defendant's treatment plan, Dr. Choueka opined, to a reasonable degree of medical certainty, that Dr. Melone met the standard of care when he performed the MP joint arthroplasties on January 30, 2014. He testified that in order for plaintiff's fingers to move, he had to replace the arthritic parts of plaintiff's bone with silicone implants, reconstruct ligaments, release muscle, and move tendons from one place to the other. In direct contravention to the testimony of Dr. Gluck, Dr. Choueka testified that defendant properly aligned the silicone implants during the January 30, 2014 surgery. Using plaintiff's post-operative x-rays, Dr. Choueka testified that "[the] fingers are perfectly straight. The bone cuts look good, look straight. The implants are in there. They're doing what they should do, and this looks like a great result. Everything is balanced."
Additionally, to a reasonable degree of medical certainty, Dr. Choueka opined that the Dupuytren's contracture had returned after the January 30, 2014, surgery. Not only was Dr. Choueka's opinion consistent with Dr. Melone's September 30, 2014 note indicating that a contracture was recurring, but Dr. Choueka indicated that the recurrence of the contracture was documented by plaintiff's three treating physicians, Dr. Melone, Dr. Gupta and Dr. Barron. Significantly, Dr. Choueka testified that Dr. Barron performed scar revision surgeries to address plaintiff's recurring Dupuytren's contractures, and that Dr. Barron's decision as to whether or not to replace the implants inserted by Dr. Melone on January 30, 2014, with smaller implants was a judgment call. The verdict demonstrates that the jury gave probative weight to Dr. Choueka's testimony, and rejected Dr. Gluck's testimony that there was no evidence that the Dupuytren's contractures had returned.
The record further demonstrates that it was properly within the province of the jury to accept Dr. Choueka's opinion as to plaintiff's progress in physical therapy, and to reject Dr. Gluck's opinion that the physical therapy was not working. Contrary to Dr. Gluck's findings, Dr. Choueka testified that a June 16, 2014, physical therapy note containing objective findings showed that plaintiff had almost the same grip strength in her right hand as her left hand, with decreased pain, swelling, and marked increase in motion and function. Dr. Choueka testified that this result was consistent with the objective findings contained in the medical records of plaintiff's last visit with defendant on March 11, 2015.
Dr. Richard Gilbert, an orthopedic surgeon, was also produced on defendant's case in chief. Dr. Gilbert testified that he performed an IME of plaintiff on March 16, 2018. Based on his examination, he concluded that plaintiff had subjective complaints of residual right-hand stiffness, however, he testified that based on his objective findings, plaintiff had fairly normal motion, and that she was able to perform fine motor skills like cooking, buttoning, bathing and drying herself, as well as texting on a cell phone using two hands.
In the case at bar, the testimony of the experts, together with the evidence adduced at trial from defendant Dr. Melone, was sufficient to resolve factual and credibility issues by the jury. The case law is well-settled that the jury is entitled to consider the testimony of defendant and the evidence to resolve matters of credibility among experts (see Rozon v Schottenstein , 2020 NY Slip Op 31938(U) ). "If the resolution of the case turns on the evaluation of conflicting testimony of expert witnesses, the resolution of such a conflict rests with the jury and not the court" ( Rozon v Schottenstein , 204 AD3d 94, 103 [1st Dept 2022] ; see McDermott v Coffee Beanery, Ltd. , 9 AD3d 195, 207 [1st Dept 2004] ).
Similarly, the jury accepted the evidence presented by defendant regarding the issue of informed consent. In order to establish a cause of action for malpractice based on lack of informed consent, plaintiffs are required to prove:
(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury ( Zapata v Buitriago , 107 AD3d 977, 979 [2d Dept. 2013] ; see Spano v Bertocci , 299 AD2d 335, 337-338 [2d Dept 2002] ; Public Health Law § 2805-d[1] ).
The qualitative insufficiency of the patient's consent must be established through expert testimony (see Johnson v Jacobowitz , 65 AD3d 610 [2d Dept 2009] ).
Applying the law to the facts in the case at bar, plaintiff must prove that a reasonably prudent person in her position would not have undergone the surgery on January 30, 2014, if she had been fully informed of the risks, and that as a result, the lack of informed consent is the proximate cause of the alleged injury.
While plaintiff testified that Dr. Melone did not explain the risks, benefits, and alternatives ("RBA") of the treatment plan to address the two diseases in her right hand, Dr. Choueka testified that Dr. Melone's patient notes of September 9, 2013, and January 22, 2014, both contained an RBA notation. Dr. Choueka testified that the RBA notation,
is the standard way hand surgeons indicate that they had an informed discussion with the patient, that they discussed risks, things that can go wrong; [what] the benefits of surgery would be; alternative treatment plans, anything else we can do besides surgery and, .generally [indicates] that the patient understands, meaning that there's a verbal acceptance of what you said.
Not only does Dr. Choueka's testimony contradict the testimony of plaintiff and Dr. Gluck as to whether the RBA were explained, but the Court finds that Dr. Choueka's testimony had significant probative weight based on Dr. Melone's January 22, 2014, note, which stated that "[p]atient understands and requests [1/30/2014] surgery."
Based on the foregoing, the jury verdict in favor of defendant as to whether there was a departure from the standard of care by defendant in performing the surgery on plaintiff on January 30, 2014, and whether there was a lack of informed consent, should not be overturned as being against the weight of the evidence pursuant to CPLR 4404(a), since the verdict is supported by the trial record. In this regard, the Court notes that "the overturning of the jury's resolution of a sharply disputed factual issue may be an abuse of discretion if there is any way to conclude that the verdict is a fair reflection of the evidence" ( Nicastro v Park , 113 AD2d 129, 135 [2d Dept 1985] ; see Torricelli v Pisacano , 9 AD3d 291[1st Dept 2004] ).
Accordingly, it is hereby
ORDERED , that the plaintiffs’ motion is denied.
This constitutes the decision and order of the court.