Altman v. Alpha Obstetrics and Gynecology, P.C.

• Decision Date: 02 November 1998
• Citation: 255 A.D.2d 276,679 N.Y.S.2d 642
• Parties: 1998 N.Y. Slip Op. 9509 Andrew ALTMAN, etc., et al., Respondents, v. ALPHA OBSTETRICS AND GYNECOLOGY, P.C., et al., Defendants, Maimonides Medical Center, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 642

679 N.Y.S.2d 642

1998 N.Y. Slip Op. 9509

Andrew ALTMAN, etc., et al., Respondents, v. ALPHA OBSTETRICS AND GYNECOLOGY, P.C., et al., Defendants Maimonides Medical Center, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 2, 1998.

Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York City (Mark J. Aaronson, of counsel), and Newman & Company, P.C., New York City (Thomas R. Newman and Barry T. Bassis, of counsel), for appellant (one brief filed).

Kramer, Dillof, Tessel, Duffy & Moore, New York City (Thomas A. Moore, Norman

Bard, and Matthew Gaier, of counsel), for respondents.

Before BRACKEN, J.P., and PIZZUTO, FRIEDMANN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Maimonides Medical Center appeals from a judgment of the Supreme Court, Kings County (Levine, J.), dated December 9, 1997, which, upon a jury verdict and an order denying its motion, inter alia, pursuant to CPLR 4404(a) to set aside the verdict, is in favor of the plaintiffs and against it in the principal sum of $9,437,482.

ORDERED that the judgment is affirmed, with costs.

It is well settled that in determining whether a jury verdict is based upon insufficient evidence as a matter of law, the relevant inquiry is "whether 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial' " (Mirand v. City of New York, 84 N.Y.2d 44, 48-49, 614 N.Y.S.2d 372, 637 N.E.2d 263, quoting Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145). In contrast, in determining whether a jury verdict is against the weight of the evidence, the operative question is whether "the jury could not have reached the verdict on any fair interpretation of the evidence" (Delgado v. Board of Educ., 65 A.D.2d 547, 408 N.Y.S.2d 949, affd. 48 N.Y.2d 643, 421 N.Y.S.2d 198, 396 N.E.2d 481; see, Panzarino v. Carella, 247 A.D.2d 521, 669 N.Y.S.2d 301).

Contrary to the claim of Maimonides Medical Center (hereinafter the Hospital), the plaintiffs' counsel did not argue, during the second day of his summation, an entirely novel theory of liability, based on delay. The theory was clearly set forth in the plaintiffs' verified bill of particulars as to the Hospital, in which the plaintiffs asserted that the Hospital was careless and negligent "in failing to timely and properly examine the mother of the infant plaintiff * * * in failing to timely and properly treat the prolapsed cord and fetal distress; [and] in failing to perform a timely Caesarean section". Moreover, both sides adduced testimony on this issue.

With regard to the merits of the Hospital's contention as to the sufficiency of the evidence, the trial record provides ample support for the jury's finding of liability. Considering the evidence in the light most favorable to the plaintiffs, it cannot be said that it was irrational for the jury to conclude that the Hospital departed from accepted medical practice in diagnosing and treating the prolapsed cord condition of the mother of the injured plaintiff, and that such negligence was a proximate cause of the infant plaintiff's injuries (see, D'Abbraccio v. New Rochelle Hosp. Med. Ctr., 233 A.D.2d 539, 540, 654 N.Y.S.2d 383; Chazon v. Parkway Med. Group, 168 A.D.2d 660, 662, 563 N.Y.S.2d 488). While the Hospital presented testimony to the contrary, "the credibility of the witnesses and the accuracy of their testimony were issues for the jury to determine" (Rosenberg v. Rixon, 111 A.D.2d 910, 911, 490 N.Y.S.2d 807; see, Panzarino v. Carella, supra). Similarly, while the mother expressed some uncertainty during cross-examination as to the timing of events, and made some statements that, in...