Opinion
24154/98.
Decided January 10, 2006.
The attorney for plaintiff is Warren J. Willinger, New York, New York.
The attorney for defendant is Brian A. Trodden, Schub, Ahmuty, Citrin and Spratt, Lake Success, New York.
Plaintiff moves pursuant to CPLR § 4404(a) to set aside the jury verdict with respect to three departure issues presented to the jury, identified in the verdict sheet in questions 1, 4 and 5, in which the jury found that defendant Dr. Joel Rascoff did not depart from good and accepted medical practice and upon granting such relief directing an assessment of damages or in the alternative setting the verdict aside regarding the departure issues presented to the jury in question 1, 4 5 of the verdict sheet and granting a new trial on the grounds that the verdict rendered by the jury is against the weight of evidence.
This medical malpractice action proceeded to trial on January 3, 2005 and resulted in a verdict rendered on February 3, 2005 in which the jury found in favor of Dr. Rascoff on all six departure questions presented to the jury.
Ms. Wengroff, the decedent, was a patient of Nephrology Associates (Nephrology) for many years and was treated by Drs. Rascoff, Golden and Alsaloum who were all associated with Nephrology. Neither Nephrology Associates, Dr. Golden or Dr. Alsaloum were named as parties in this action. It is also undisputed that Ms. Wengroff was suffering from end stage renal disease and was a dialysis patient for many years prior to her admission to Montefiore.
On March 13, 1996 Ms. Wengroff was transferred from the Trudy Weisshaupt Dyalisis Center to Montefiore Hospital for suspected gastrointestinal bleeding and to undergo an operation on her left arm to install an A.V.fistula or shunt. There is no dispute that upon her admission, a Risk Fall Assessment should have been performed by a member of the nursing staff at Montefiore. It was not disputed at the trial that the hospital protocols required a patient such as Ms. Wengroff to be assessed upon admission.
However, a Risk Fall Assessment was never performed by Nurse Galgano when Ms. Wengroff was admitted and was in fact not performed until March 21, 1996 by Nurse Casullo.
The events that followed Ms. Wengroff's admission to Montefiore Hospital formed the basis for the claims brought against Montefiore, Beth Abraham Health Services, Dr. Celia Levitz and Dr. Joel Rascoff. It is also clear that Dr. Rascoff, a Board Certified Nephrologist was one of the members of the group, Nephrology Associates, who treated plaintiff was listed on Montefiore's medical chart as the admitting physician for Ms. Wengroff.
Prior to the commencement of this trial, the action brought against Montefiore Medical Center (Montefiore) and Beth Abraham Health Services was settled and the trial continued only against Dr. Rascoff.
Plaintiff contends that Dr. Rascoff was responsible for the total care of his patient, Ms.Wengroff, while she was at Montefiore which commenced when Ms. Wengroff was admitted to Montefiore on March 13, 1996 and continued through April 3, 1996. Defendant asserts that the proof presented at the trial established that Dr. Helen May was Ms. Wengroff's primary care physician. As an example of Dr. May's responsibilities as the primary physician attending to Ms. Wengroff defendant Rascoff points to his testimony, the testimony of his expert and relevant portions of the hospital record such as the order placed by Dr. May for Percoset after Ms. Wengroff's initial procedure to install a shunt in her arm.
Nurse Casullo testified that she was unaware a Risk Fall Assessment was not performed when Ms. Wengroff was admitted or that a nursing order required bed rails to be up when Ms. Wengroff was in bed. In addition, Nurse Casullo testified that it is part of the nurse's responsibility to evaluate, on a daily basis, a patient's skin to protect against pressure sores or decubitus ulcers; that she (Casullo) together with the resident assigned to the patient were initially required to evaluate the patient's skin integrity and that the house doctor or the resident would be the primary person to consult regarding a patient's condition.
The questions posed to Nurse Casullo by both attorneys that elicited the above information also set the stage for testimony by Nurse Casullo concerning Ms. Wengroff's fall which caused her to sustain a fracture of the head of the humerus. After Ms. Wengroff returned to her room on March 20, 1996, Nurse Casullo testified that she placed Ms. Wengroff on the side of the bed, unattended, with her feet dangling off the bed which the jury believed caused her to fall and fracture her humerus and that condition in turn caused other medical complications including debilitating decubitus ulcers. Manifestly, testimony of several nurses during the trial as well as numerous entries made in the hospital record presented to the jury the responsibility of the nursing staff for Ms. Wengroff's injury.
The first issue raised by plaintiff's attorney challenging the verdict centers on Dr. Rascoff's lack of awareness concerning the failure by the Hospital Staff to employ various safety measures to insure against the fall that occurred and the later development of decubitus ulcers.
Whether Dr. Rascoff acted in the capacity of a nephrology consultant to his patient, Ms. Wengroff during her hospitalization at Montefiore after March 13, 1996 and whether his lack of awareness concerning whether the hospital staff complied with the hospital's protocols concerning the care and treatment rendered to Ms. Wengroff was malpractice are the factual issues the jury was required to resolve in answering questions 1, 4 and 5. Testimony was provided regarding the disputed factual issues presented to the jury by direct testimony from the expert called by each party, the cross examination by counsel for each party and other evidence such as extensive excerpts from the hospital record admitted into evidence.
Each expert testified to such issues as who should bear the responsibility for not ordering the use of bed rails. Dr. Brensilver, plaintiff's expert, also gave his opinions to the jury on whether Dr. May or Dr. Rascoff was Ms. Wengroff's primary physician responsible for supervising her care and who should bear the responsibility for a patient's total care when admitted to a hospital. Dr. Becker, plaintiff's expert presenting testimony in opposition to the conclusions drawn by defendant's expert testified that Dr. Rascoff deported from good and accepted medical practice in failing to be aware of the patient's inability to care for herself during her admission and that Dr. Rascoff did not act in accordance with accepted standards of medical practice when he failed to take action with regard to the failure to treat Ms. Wengroff's pressure ulcers. The above reference to testimony represents a small example of the disputed factual issues presented to the jury.
The Court of Appeals in Cohen v. Hallmark Cards 45 NY2d 493, 498-499, 382 NE2d 1145, 410 NYS2d 282 examined the criteria for setting aside a jury verdict and while the factual issue presented in Cohen, supra, were quite different than the issues presented in the case at bar, the court in Cohen, supra, made it clear that whether a jury verdict should be set aside as against the weight of evidence does not involve a question of law, but rather involves a discretionary balancing of many factors, and the courts discretionary power must be exercised with caution. This clear pronouncement was previously explored by the court in Nicastro v. Marion Park 113 AD2d 129, 495 NYS2d 184 [2nd Dept. 1985]) where the court said "the fact that determination of a motion to set aside a verdict involves judicial discretion does not imply, however, that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A prominent principle of jurisprudence in this area is that the 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. Fact finding is the province of the jury, not the trial court, and a court must act warily lest overzealous enforcement of its duty to over see the proper administration of justice leads it to overstep its bounds and unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty' ( Ellis v. Hoelzel, 57 AD2d 968, 969; accord, Zolli v. Dubois, 88 AD2d 951; Durante v. Frishling, supra; Facteau v. Wenz, at p. 932). This is especially true if a verdict is contested solely on weight of the evidence grounds and interest of justice factors have not intervened to flavor the judicial response to the motion. Absent such complications, the challenge is directed squarely at the accuracy of the jury's fact finding and must be viewed in that light.
Conflicting evidence was presented to the jury on several issues regarding Dr. Rascoff's failure to be aware of Ms. Wengroff's need "for total care" and his role as a primary physician or consultant and when such evidence is presented which concurrently involves assessing the credibility of expert witnesses, it is for the jury to determine the weight and conclusiveness of such evidence (see Swensson v. New York, Albany Desp. Co., 309 N.Y.497, NE2d 902; Stewart v. Orlean Medical Group 17 AD3d 1094, 795 NYS2d 420, Sorokin v. Food Fair Stores 51 AD2d 592 People v. Fields 16 AD3d 142, 789 NYS2d 888.
Questions 4 and 5 of the verdict sheet presented specific issues to the jury regarding whether Dr. Rascoff deviated from good and accepted medical practice by failing to be aware of the April 2, 1996 nursing note which described stage two decubitus ulcers and his failure to provide treatment to Ms. Wengroff's bed sores constituted departure from good and accepted medical practice.
Here, again, conflicting evidence was presented to the jury regarding Dr. Rascoff's responsibility to be aware of the decubitus ulcers. According to plaintiff's expert, Dr. Becker, he testified that Dr. Rascoff departed from good and accepted medical practice in failing to be aware of the development of stage 2 decubitus ulcers. This condition was recorded in a nurse's note made by Nurse Hagan and this note was the basis for several departure questions posed to Dr. Becker, plaintiff's expert. Dr. Becker was asked whether he had an opinion with a reasonable degree of medical certainty whether "Dr. Rascoff acted in accordance with accepted standards of medical practice in taking no action with regard to the pressure ulcers," noted in the Pressure Flow Sheet for April 2, 1996. Dr. Becker's response was that either the physician has to take it upon himself to treat them, if he's able to, or have someone come in who does treat them, very often a general surgeon would come in to treat them. Defendant Rascoff by his nephorology expert, Dr. Brensilver testified regarding several nursing notes commencing with the entry made on March 25, 1996 and March 31, 1996 which documented the care and treatments prescribed for plaintiff Wengroff's bedsores. Dr. Brensilver identified Dr. May as the physician at Montefiore Hospital who prescribes treatments for the bedsores and that it was not Dr. Rascoff's responsibility to care for "the patient skin or decubitus ulcer . . ."
A court should exercise its discretion to set aside a verdict as against the weight of evidence only where it seems palpably wrong and where it is evident that the preponderance is so great the jury could not have reached its conclusion upon any fair interpretation of the evidence (see Cornier v. Spagna 101 AD2d 141, 149, 475 NYS2d 7) It cannot be said that the jury's determination in finding Dr. Rascoff did not deviate from good and accepted medical practice is without support in the record and as the court noted in Loughman v. A.W. Flint Co., Inc., 132 AD2d 507, 518 NYS2d 389 "It is clear that this case presented a classic battle of experts where the evidence was sharply contested as to the primary issue" regarding whether the hospital by its medical staff including Dr. May or Dr. Rascoff should bear the responsibility for the deterioration of the medical condition of Ms. Wengroff. To say that the jury's verdict was palpably incorrect and against the preponderance of evidence would require this Court to conclude that the testimony of defendant Rascoff and his expert are unworthy of belief. (see Chlowinski v. Wisnicki 21 AD3d 791, 801 NYS2d 576; Soto v. NYCTA 19 AD3d 579, 800 NYS2d 419).
The elements of proof in a medical malpractice action are, a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage to the plaintiff (see Amsler v. Verrilli 119 AD2d 786, 501 NYS2d 411); also Cholewinski v. Wisnicki 21 AD3d 791, 801 NYS2d 576; Soto v. N.Y.C.T.A. 19 AD3d 579; 800 NYS2d 419). On the record before this court, contrary to plaintiff's contentions the verdict is supported by the evidence presented to the jury. Accordingly, plaintiffs motion is denied. This constitutes the decision and order of this court.