Opinion
2013-05-16
Magdelena T. JACOBS, Plaintiff–Appellant, v. MADISON PLASTIC SURGERY, P.C., et al., Defendants–Respondents.
Law Offices of Daniel A. Thomas, P.C., New York (Daniel A. Thomas of counsel), for appellant. James W. Tuffin, Islandia, for respondents.
Law Offices of Daniel A. Thomas, P.C., New York (Daniel A. Thomas of counsel), for appellant. James W. Tuffin, Islandia, for respondents.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 6, 2012, which denied plaintiff's posttrial motion to set aside the verdict, unanimously affirmed, without costs.
On December 11, 2007, defendant Dr. Tornambe performed bilateral breast revision surgery, including implant replacement, on plaintiff. Plaintiff brought suit, alleging that the left breast revision resulted in nipple asymmetry and breast deformity.
We perceive no basis to disturb the jury's crediting of the testimony of defendant Dr. Tornambe that he marked plaintiff's breasts intraoperatively while she was in a seated position, a procedure the experts agreed was within the standard of care ( see Torricelli v. Pisacano, 9 A.D.3d 291, 780 N.Y.S.2d 137 [1st Dept. 2004], lv. denied3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004] ).
The trial court did not commit reversible error in allowing into evidence testimony concerning plaintiff's expert's prior medical malpractice actions against her. This evidence was at most harmless error, particularly since the same testimony was elicited from defendant's expert.
Since plaintiff's expert testified that nipple asymmetry and breast deformity can occur in the absence of negligence, the trial court appropriately declined plaintiff's request to charge the jury with res ipsa loquitur ( see generally States v. Lourdes Hosp., 100 N.Y.2d 208, 762 N.Y.S.2d 1, 792 N.E.2d 151 [2003] ).
We have considered plaintiff's remaining contentions and find them unavailing.