Summary
In Stewart v. New York City Health & Hospitals Corp., 207 A.D.2d 703, 616 N.Y.S.2d 499 (1st Dep't 1994), a plaintiff had a ten percent chance of conceiving a child through sexual intercourse, but that chance was lost due to medical malpractice.
Summary of this case from Mann v. United StatesOpinion
September 15, 1994
Appeal from the Supreme Court, Bronx County (Bernard Burstein, J.).
In this medical malpractice case, plaintiff's expert testified at trial that if plaintiff's right fallopian tube had not ruptured as a result of an ectopic pregnancy and been destroyed, plaintiff would have had a less than 50 percent chance of having a child by means of sexual intercourse, which he could not "specifically" quantify. Defendant's expert calculated the percentage at 5 to 10 percent. The jury found that "the omission to diagnose * * * plaintiffs ectopic pregnancy [prior to a specified date was] a departure from acceptable medical practice" and "deprive[d] plaintiff of a substantial possibility of giving birth naturally," and the jury returned a verdict in plaintiff's favor for the loss of "natural" child-bearing capacity. On defendant's post-trial motion, this claim was dismissed. The court held that the evidence was legally insufficient to show, with reasonable medical certainty, that there was a "substantial" possibility that plaintiff could have a successful uterine pregnancy following sexual intercourse and rejected plaintiff's argument that a 10 percent chance is such a "substantial" possibility.
While plaintiff's expert testified that he was unable to "specifically" state plaintiff's chance of having a successful pregnancy as a result of sexual intercourse, he reiterated his earlier testimony that the range of success was between 13 and 100 percent.
We disagree and reinstate the verdict for loss of child-bearing capacity. Under the court's charge, to which defendant did not object and which, in our view, did not, as defendant claims, impermissibly "prevent the jury from considering whether defendant's alleged negligence was more likely than not a proximate cause of her injury," plaintiff was required to prove "that it was more likely than not * * * that she lost a substantial opportunity to have natural child birth." In addition, the jury was instructed that it "must be persuaded by a preponderance of the credible evidence that what [plaintiff] lost, if it was substantial, was more likely than not lost because of the loss of the tube. * * * But the chance that she lost, in order to be substantial, doesn't have to be more likely than not. It doesn't have to be more than 50 percent but it has to be more than slight."
Thus plaintiff did not, as defendant contends, have to prove that defendant's negligence "deprived [her] of the ability to conceive and bear children naturally." Rather, plaintiff merely had to prove that defendant's negligence was the proximate cause of the loss of plaintiffs right fallopian tube and that such negligence deprived her of a substantial possibility of that ability. And if the jury found that she lost even a 5 to 10 percent chance of having a successful pregnancy as a result of sexual intercourse and that this chance was "substantial," a verdict in her favor would be justified. To establish a prima facie case of negligence, the plaintiff must show that the defendant's negligence was a substantial factor in bringing about the injury (Mortensen v. Memorial Hosp., 105 A.D.2d 151, 157 [amputation of a limb]; see also, Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370 [brain damage]). Plaintiff has met her burden.
As to the award for pain and suffering, while, in our view, a reduction of the jury's $500,000 award was called for, the reduction imposed was excessive. We conclude that $300,000 more adequately compensates plaintiff for her injury.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.