Opinion
101885/09
05-01-2012
Don Liyanage, Plaintiff, v. Dr. Laura Amann, Defendant.
Attorney for Plaintiff: Law Offices of Joel M. Kotick By: Joel M. Kotick Attorneys for Defendant: Kaufman Borgeest & Ryan, LLP By: Joseph D. Furlong
Attorney for Plaintiff: Law Offices of Joel M. Kotick By: Joel M. Kotick Attorneys for Defendant: Kaufman Borgeest & Ryan, LLP By: Joseph D. Furlong Alan C. Marin, J.
Defendant Dr. Laura Amann has moved to set aside the February 9, 2012 jury verdict in this matter, seeking an order that would either direct judgment for her, or in the alternative, direct a new trial of the lawsuit against defendant, who had been plaintiff's dentist.
For this Court to direct judgment for defendant, notwithstanding the jury's verdict for plaintiff, would require a showing that there was, "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial." Cohen v Hallmark Cards, 45 NY2d 493, 499. Directing a new trial would require a showing that, "the jury could not have reached the verdict on any fair interpretation of the evidence." Nicastro v Park, 113 AD2d 129, 134 (2d Dept).
Don Liyanage treated regularly with Dr. Amann from April of 2006 through February of 2008. On January 16, 2008, he went to the emergency room of Richmond University Hospital because, "I had a fever." A chest x-ray was taken and showed a metal sliver about 1.7 centimeters long in his left lung. At trial, it was not disputed that this was the burr from the end of a dental drill.
Mr. Liyanage had treated with another dentist for about a year and a half before Dr. Amann became his dentist. Plaintiff testified that he recalled a mid-2007 appointment with Amann at which, "something had stuck in my throat . . . and I was struggling at that time to breathe." Dr. Amann did not recall the incident, and explained that had her patient swallowed something or reacted as if he did, she would have taken a number of actions including sending him to the emergency room, if not driving Liyanage there herself.
Amann's hygienist Ms. Bedrige Goya testified that she could not recall a drill piece going missing, that she would have used a suction with a trap and that Liyanage never responded as if the drill burr went into his throat. Plaintiff called to the stand as his expert witness, dentist Michael Chesner, who testified as to how the burr is affixed to the drill, the manner in which it could become dislodged and that allowing such to happen would be a departure from accepted dental practice.
The jury answered in the affirmative the first two questions on the verdict sheet, namely: "Did a dental instrument or piece of a dental instrument shown on the x-ray of January 16, 2006 go into his lung during Don Liyanage's course of treatment by Dr. Laura Amann?" and "Did Dr. Amann depart from accepted dental practice resulting in a dental instrument or piece of a dental instrument going into the lung of Mr. Liyanage?" There is no basis under Park/Nicastro to disturb these conclusions of the jury, and such determination is not at issue in this motion.
The jury then found that the inhaling of the burr was a substantial factor in causing injury to Mr. Liyanage and awarded him $30,000 for past pain and suffering and $400,000 for future pain and suffering over a 37-year period. What is at issue here is whether inhaling or aspirating the drill burr caused plaintiff injury and pain and suffering.
The 37-year period, which was plaintiff's actuarial life expectancy, was given by the Court to the jury as part of PJI 2:281.
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Liyanage testified that when told by the hospital staff on January 16, 2008 that he had something metallic in his lung, "I was shocked. I was like stunned. I don't know how this came to my lungs. I'm so confused and I'm worried. I'm really afraid . . ." Two weeks later on February 1, plaintiff underwent an endoscopy, by which a tube was inserted into his nose down into the lungs in order to extract the burr. During the procedure by pulmonologist Publius Martins, plaintiff was placed under anesthesia. When he woke up, Liyanage testified that he felt fine, checked himself and, "I feel like oh, everything is finished." It was not until he followed up with Dr. Martins on February 6 that he learned that the metal burr was still in his left lung: ". . . I felt like my whole world was collapsing at that time because the doctor said, No, I couldn't take it out.'"
Liyanage was treated by his pulmonologist some half dozen times. Dr. Bertie Bregman, plaintiff's primary care physician, also saw plaintiff on multiple occasions during this period. Liyanage had one appointment with Dr. Bernard Crawford, a thoracic surgeon, on November 10, 2010.
The evidence - - the Richmond University Hospital records, the consults with Dr. Martins and Dr. Crawford, the results of the CT-scans and Mr. Liyanage's own trial testimony - - contains no report, complaint or testimony of pain or discomfort, respiratory unease, infection or any other physical/medical problem or condition.
The January 16, 2008 Richmond University Hospital report stated that the chest was "clear" and everything else was "normal"; a few days later on January 19, Dr. Martins saw the patient and reported that he denied respiratory symptoms (meaning no coughing, shortness of breath or chest pain); the radiologist who did a January 24, 2008 CT-scan evaluation stated that the lung around the metallic object looked normal and the foreign body should be of no clinical significance in the future; on a May 3, 2010 consult, Dr. Martins noted his Impression as, "No acute disease and no significant internal change [from January 24, 2008]"; and on June 1, 2010, Dr. Martins' chart indicated that there were no complaints and everything was normal.
Similarly, no change was reported when plaintiff saw Dr. Martins on August 17, 2010, had a CT-scan August 21, 2010, and was seen January 7, 2011 with a viral infection. Finally, according to Liyanage, when he saw Dr. Martins on December 20, 2011, an x-ray was taken; plaintiff did not testify as to any medical change or complaint.
The only references to any negative result or problem for Mr. Liyanage were cast in terms of what potentially could occur. Thus, the November 10, 2010 Impression and Plan of Dr. Crawford was as follows:
I recommend that nothing be done with regard to this foreign body. It should remain inert and not result in any difficulties for this gentleman going forward. In the event that he should develop a significant pulmonary infection in the future, a CT-scan of the chest should be performed. If the infection is associated with the area of the foreign body, a localized resection would be indicated at the time.
Dr. Mark Rosen, defendant's expert pulmonologist, was asked about the implication of Dr. Crawford's reference to lung resection if needed and some testimony was elicited to the effect that technically, the lung is collapsed as part of the procedure, but returns to normal with a high degree of probability.
There are no contemporaneous notations in any hospital record or medical consult of Liyanage expressing emotional distress, anxiety, mental anguish etc., but plaintiff did so testify at trial, although his testimony did not include how plaintiff's emotional distress affected his daily living. Plaintiff, as indicated, testified that he was shocked and stunned about discovering that he had a metal burr in his lung, and that when he learned that the endoscopy was unsuccessful, he felt as if his world had come apart.
After being read Dr. Crawford's Impression set out above, the plaintiff testified as follows: "I'm confused how to stay away from the germ . . . So I'm afraid every day that if someone is sneezing or someone I see is sick, I start getting worried and I'm getting scared, what if something happened to me or am I going to catch any kind of germ . . . Every day I go somewhere, these worried things come into my mind." On cross-examination, Liyanage recalled telling Dr. Martins that he was afraid and worried.
Mr. Liyanage had a wisdom tooth extracted February 22, 2008 by Dr. Mark Stein, whom Dr. Amann had recommended as she did not perform wisdom teeth extractions in her practice. Plaintiff testified that this was his last visit to a dentist since he had become afraid to do so: "All these memories come to mind."
Plaintiff did not call Dr. Martins to the stand at trial, and the jury was given the missing witness charge, PJI 1:75. The plaintiff called as an expert, dentist Michael Chesner, but Dr. Chesner was limited to dentistry, and was not permitted to venture into pulmonary, thoracic or related medical issues. Defendant, as noted, called pulmonologist Mark Rosen.
Dr. Rosen testified that there was no permanent injury to Liyanage's lung, that future treatment would not be required, and that there was no need for future monitoring by x-ray, CT-scan or MRI. He also observed that it may not have been necessary to attempt removal via bronchoscopy - - that performing such procedure was a judgment call.
However, when asked about anxiety, Dr. Rosen answered, "Perhaps" on direct examination and "Yes" on cross, and that initially, it would not be uncommon for a patient to ask if he would die from the metal object. Rosen agreed that most people would have anxiety for the few days before the procedure. The pulmonologist agreed that a patient would have "some anxiety" if it turned out that he needed an operation because his lung had become infected.
Defendant maintains that it would be improper to utilize testimony elicited on defendant's case to defeat the instant motion; in other words, when plaintiff rested, defendant's motion for failure to make out a prima facie case should have been granted. The better practice is not to do so; see Siegel, New York Practice §402 (page 705, 5th ed).
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After determining that a piece of a dental instrument went into plaintiff's lung during treatment by defendant and that such was the result of a departure from accepted dental practice, the jury then affirmatively answered that this departure was a substantial factor in causing injury to Mr. Liyanage. It was for the jury to determine that this breach of physical integrity by a metal burr constituted an injury by itself; such finding does not contravene Cohen or Nicastro.
Having decided that plaintiff suffered an injury, the jury went on to award pain and suffering in the amounts noted above. The facts here are not akin to those underlying the very limited class of exceptions that allow an award for only emotional distress, as in Bovsun v Sanperi, 61 NY2d 219 (plaintiff observed members of her immediately family killed or seriously injured in a two-car collision and was exposed to same) or Broadnax v Gonzalez, 2 NY3d 148 (an expectant mother, even in the absence of independent injury, could recover for emotional distress in the case of a miscarriage or stillbirth). With that said, in a case involving a foreign body, an award for plaintiff is obviously better founded when the object causes direct harm such as the abscess and infection that developed from a laparotomy pad in Kambat v St. Francis Hosp., 89 NY2d 489.
There is, at best, limited precedential guidance for our set of facts. In Ornstein v New York City Health and Hosps. Corp., 10 NY3d 1 (2008), a nurse was exposed to human immunodeficiency virus (HIV) when she came in contact with a blood-filled hypodermic needle from a patient with acquired immune deficiency syndrome (AIDS). There was an extensive testing protocol, but the case was, in essence, one for emotional damages because Ms. Ornstein did not ultimately contract the virus. The Court of Appeals would not limit the time frame for recovery inasmuch as plaintiff had a psychiatrist testify about longer-lasting effects due to post- traumatic stress disorder. In the instant case, no mental health professional testified on behalf of Mr. Liyanage (who was not taking medication for any psychological problem), although no specified mental disorder was claimed by Liyanage.
This Court concludes that the intrusion of a piece of a dental instrument, even without evidence of any resulting physical problem, coupled with the testimony presented on emotional distress, although not particularly detailed, was sufficient for the jury to find injury and pain and suffering. As for the amount of the award, specifically the $400,000 for future pain and suffering, given that the amount is for 37 years, such does not deviate materially from what would be reasonable compensation.
In view of the foregoing, and having reviewed the parties' submissions together with the trial testimony, IT IS ORDERED that plaintiff's motion be denied in all respects. ENTER ______________________________ Alan C. Marin J.S.C.
The following were reviewed: for defendant, a Notice of Motion and Affirmation with exhibits A through D, and a Reply Affirmation; for plaintiff, an Affirmation in Opposition with exhibit A.
Plaintiff's exhibit A is a letter from a juror to the Court dated February 29, 2012, which the Court forwarded to the parties. Each party references the jury note as supporting its position (Defendant's Reply Affirmation, ¶ 26 and Plaintiff's Affirmation, page 19). In any event, the note will not be considered by the Court: it involves the juror's reflections about the case subsequent to the verdict and is not concerned with anything that may have occurred in the courthouse or jury room or that was experienced by this or any other juror during the trial.