Opinion
December 14, 1998
Appeal from a the Supreme Court, Nassau County (Dunne, J.).
Ordered that the judgment is reversed, on the facts and as an exercise of discretion, without costs or disbursements, and a new trial is granted on the issue of damages only, unless within 30 days after service upon the plaintiff's parents, Richard Luneburg and Catherine Luneburg, of a copy of this decision and order with notice of entry, the plaintiff's parents shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce the verdict as to damages for (1) past pain and suffering from the sum of $900,000 to the sum of $500,000, and (2) future pain and suffering from the sum of $1,100,000 to the sum of $900,000, and to the entry of an amended judgment accordingly; in the event that the plaintiff's parents so stipulate, then the judgment, as so decreased and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment accordingly.
Contrary to the defendants' contention, the plaintiff adduced sufficient evidence from which the jury could rationally find that the defendants departed from good and accepted standards of medical practice by penetrating the infant plaintiff's larynx during an operation to remove a thyroglossal duct cyst from her throat, by failing to prescribe antibiotics after the operation despite the increased risk of infection due to the entry into the larynx, and by failing to keep the infant plaintiff in the hospital for more than two days after the operation ( see, Nicastro v. Park, 113 A.D.2d 129, 132).
The trial court should not have granted the plaintiff's request for a missing witness charge with regard to the speech therapist who treated the plaintiff, since there was no serious dispute in the case about the extent of the plaintiff's injury ( see, Arpino v. Jovin C. Lombardo, P. C., 215 A.D.2d 614, 615-616; Weinstein v. Daman, 132 A.D.2d 547, 549). This error, however, did not deny the defendants a fair trial, and does not warrant reversal ( see, Coningsby v. Marabell, 214 A.D.2d 949).
The award of damages deviates materially from what would be reasonable compensation to the extent indicated ( see, CPLR 5501 [c]).
The defendants' remaining contention is without merit.
Rosenblatt, J.P., Copertino, McGinity and Luciano, JJ., concur.