Braun v. Ahmed

• Decision Date: 27 April 1987
• Citation: Braun v. Ahmed, 515 N.Y.S.2d 473, 127 A.D.2d 418 (N.Y. App. Div. 1987)
• Parties: Willi BRAUN, et al., Respondents-Appellants, v. Naseer AHMED, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 473

515 N.Y.S.2d 473

127 A.D.2d 418

Willi BRAUN, et al., Respondents-Appellants, v. Naseer AHMED, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 27, 1987.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Charles E. Luceno, of counsel), for appellant-respondent.

Sankel & Trief, New York City (Barbara E. Olk and Ted Trief, of counsel), for respondents-appellants.

Before MANGANO, J.P., and BRACKEN, BROWN, RUBIN and SPATT, JJ.

BRACKEN, Justice.

The primary issue on this appeal is one of first impression in this department, namely, whether, in a medical malpractice action, the plaintiffs' counsel in summation may request a specific dollar figure for damages. Because we believe that counsel may as a matter of fair comment make such a request and since that request was denied by the trial court in this instance, we reverse and direct a new trial on the issue of damages only.

The plaintiff Willi Braun came under the care of the defendant Dr. Naseer Ahmed in 1976, primarily for the treatment of diabetes. During a visit in May 1978 Braun complained of an irritation on the foreskin of his penis. Dr. Ahmed diagnosed an inflamed foreskin and prescribed an ointment. Braun's condition did not improve and in December, seven months later, the defendant recommended a circumcision.

While Braun arranged with a surgeon to undergo such surgery in January 1979 he thereafter cancelled the procedure and continued under the defendant's care. He was eventually circumcised in January 1980 after his condition worsened. A biopsy revealed cancerous cells, necessitating a partial penectomy in February 1980.

Braun and his wife subsequently brought this action against Dr. Ahmed on the ground that he had failed to warn Braun of the possibility of penile cancer, and had further led Braun to believe that his condition did not require immediate surgery. After trial, the jury returned a verdict against Dr. Ahmed apportioning his fault at 65% and that of the plaintiff Willi Braun at 35%, and awarding damages totaling $147,000.

The parties raise three issues on their respective appeal and cross appeal which warrant discussion. The defendant contends that the plaintiffs did not establish a prima facie case in that they failed to call a medical expert and relied instead upon the defendant's testimony to establish liability. The plaintiffs contend that the trial court erred both in refusing to permit the plaintiffs' counsel to request a specific dollar amount during summation, and in refusing to set aside the jury award as inadequate.

With respect to the issue of the defendant's liability, the trial court did not err in denying the defendant's motion to dismiss the complaint. While "it is incumbent upon the plaintiff to present expert testimony in support of the allegations to establish a prima facie case of malpractice" (Keane v. Sloan-Kettering Inst. for Cancer Research, 96 A.D.2d 505, 506, 464 N.Y.S.2d 548; see also, Paul v. Boschenstein, 105 A.D.2d 248, 249, 482 N.Y.S.2d 870), it is also well settled "that a plaintiff in a medical malpractice action may call as a witness the doctor against whom she brought the action and question him as a medical expert" (Segreti v. Putnam Community Hosp., 88 A.D.2d 590, 592, 449 N.Y.S.2d 785). In this case, the defendant himself served as the plaintiffs' expert. Dr. Ahmed testified as to the requisite standard of care, namely, that in May 1978 it would have been a departure to fail to advise Braun about the danger of cancer, that Braun had no penile cancer in May 1978, that he had warned Braun about the possibility of cancer, and that the subsequent partial penecto would not have been necessary if Braun had undergone the circumcision in May 1978. On the other hand, Braun testified that the defendant had never warned him about the possibility of cancer. Thus, the jury was squarely presented with a question of fact as to whether the defendant warned Braun of the possibility that the inflammatory condition of his foreskin could become cancerous. The remaining contentions as to liability are without merit, and we therefore affirm the jury's findings of fact as to liability, including the jury's findings with respect to the apportionment of fault.

We now address the principal issue raised on this appeal--whether counsel in summation in a medical malpractice action may request a specific sum from the jury for damages.

This issue may be resolved by reviewing both the role of the jury and of counsel in summation and relating their functions to the 1976 medical malpractice legislation and to the determination in Tate v. Colabello, 58 N.Y.2d 84, 459 N.Y.S.2d 422, 445 N.E.2d 1101.

The jury is sworn to render a verdict based upon the evidence, and if liability is established, the jurors must ascertain and award damages. The evidence determines the amount (Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 100, 102, 26 N.E. 1048). In other words, the jury must "translate the value of the [plaintiff's] injuries and of * * * consequent pain and suffering into dollars and cents" (Tate v. Colabello, supra, at p. 87, 459 N.Y.S.2d 422, 445 N.E.2d 1101). It is evident that this translation of pain and suffering into dollars and cents is "difficult of * * * estimation", since pain has "no market price[,] [i]t [cannot be] bought, sold, or bartered," and "no standard of value may be applied" (Franco v. Fujimoto, 47 Hawaii 408, 419, 424, 390 P.2d 740, 748, 750). Yet, the jury is guided by the court in this difficult endeavor with only an instruction that it is to award reasonable compensation (Paley v. Brust, 21 A.D.2d 758, 250 N.Y.S.2d 356).

Regarding the role of counsel, as a general principle there exists a right of fair comment on the evidence, described as follows:

"It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense * * * The jury system would fail much more frequently than it now does if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest latitude by way of comment, denunciation or appeal in advocating his cause" (Williams v. Brooklyn El. R.R. Co., supra, 126 N.Y. at pp. 102-103, 26 N.E. 1048).

Although broad in scope, counsel's liberty of discussion must remain within the issues and the evidence (Taype v. City of New York, 82 A.D.2d 648, 651, 442 N.Y.S.2d 799; Horton v. Terry, 126 App.Div. 479, 480, 110 N.Y.S. 646).

Distinct from the right of fair comment is counsel's right to place the contentions of the parties, as stated in the pleadings, before the jury. The "[s]tatements, admissions and allegations in pleadings are always in evidence for all the purposes of the trial of the action. They are made for the purpose of the trial, and are before the court and jury, and may be used for any legitimate purpose" (Holmes v. Jones, 121 N.Y. 461, 466, 24 N.E. 701; Tisdale v. President, etc., D. & H.C. Co., 116 N.Y. 416, 22 N.E. 700; Field v. Surpless, 83 App.Div. 268, 271, 82 N.Y.S. 127; Mandeville, Inc. v. Zah, 38 A.D.2d 730, 329 N.Y.S.2d 552, appeal dismissed 30 N.Y.2d 833, 335 N.Y.S.2d 78, 286 N.E.2d 463, affd. 35 N.Y.2d 769, 362 N.Y.S.2d 149, 320 N.E.2d 865 [held error to prevent counsel from reading a paragraph of the defendant's bill of particulars to compare it with the evidence] ). Counsel's right to use the pleadings before the jury is limited by the adversary's right to have the jury instructed that the complaint is not evidence and that the jurors should reach their determination only from the evidence (Rice v. Ninacs, 34 A.D.2d 388, 392, 312 N.Y.S.2d 246).

Narrowing our focus to counsel's right to argue a specific monetary amount, New York has long permitted mention of the figure stated in the ad damnum clause (Tisdale v. President, etc., D. & H.C. Co., supra ). However, a recent determination permits mention of a lesser lump sum figure, apparently based upon the evidence, as it clearly does not come from the pleadings (see, Tate v. Colabello, supra ). Of course, counsel still may not ask for damages in an amount exceeding the sum demanded in the ad damnum clause (Tate v. Colabello, supra ).

A review of decisions in our sister states reveals that a majority of jurisdictions permit presentation of some figure representing damages for pain and suffering, whether as fair comment on the evidence, as presentation of the pleadings, or as argument of a unit-of-time or per diem formula ¹ (see, Ann. 14 A.L.R.3d 541; Ann., 60 A.L.R.2d 1347; Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206 [in argument, proper for counsel to tell the jury what he considered a fair compensation under the evidence]; Affett v. Milwaukee & Suburban Transp. Co., 11 Wis.2d 604, 106 N.W.2d 274, 280 [proper for the defendant's counsel to state and argue the amount of future pain and suffering which he believed the evidence would fairly and reasonably sustain]; Missouri, K. & T.R. Co. of Texas v. Hibbitts, 49 Tex.Civ.App. 419, 109 S.W. 228 [defendant's attorney had a right to draw a conclusion from the evidence and discuss before the jury what he thought would be a proper amount of damages]; Shockman v. Union Transfer Co., 220 Minn. 334, 19 N.W.2d 812 [argument as to amount of client's damages based upon the evidence not error]; Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268 [statement by plaintiff's counsel in opening that suit was brought for $50,000 in damages was proper]; Phillips v. Fulghum, 203 Va. 543, 125 S.E.2d 835 [permissible for defendant's counsel to bring to the jury's attention, both in opening and summation, the amount sued for]; Meissner v. Smith, 94 Idaho 563, 494 P.2d 567, 573 [presentation of ad...