Chazon v. Parkway Medical Group
Decision Date | 31 December 1990 |
Citation | 563 N.Y.S.2d 488,168 A.D.2d 660 |
Parties | Shaul CHAZON, etc., Respondent, v. PARKWAY MEDICAL GROUP, et al., Appellants, et al., Defendants. |
Court | New York Supreme Court — Appellate Division |
Garbarini & Scher, P.C., New York City (Steven I. Brizel, of counsel), for appellants.
Fuchsberg & Fuchsberg, New York City (Martin Diennor and Abraham Fuchsberg, of counsel), for respondent.
Before LAWRENCE, J.P., and KOOPER, SULLIVAN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries resulting from medical malpractice, the defendants Parkway Medical Group, David Klebanow and Herbert Tetenbaum, appeal from a judgment of the Supreme Court, Kings County (Clemente, J.), entered May 22, 1989, which, upon a jury verdict finding that the plaintiff sustained damages of $4,283,000, and upon an order of the same court dated May 10, 1989, and a stipulation by the plaintiff to reduce the verdict as to damages to $2,496,000, is in favor of the plaintiff and against them in the principal sum of $2,496,000.
ORDERED that the judgment is modified, on the law and the facts, by increasing the award of damages from the principal sum of $2,496,000 to the principal sum of $3,083,000; as so modified, the judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment.
The evidence adduced at the trial established that on May 5, 1978, the plaintiff Shaul Chazon's wife Sheri Chazon went to the appellant Parkway Medical Group, and consulted with the appellant Dr. David Klebanow, then a member of the group. She told him that her last menstrual period had occurred on March 31, 1978, and she was subsequently diagnosed as pregnant. Until January 1979 Mrs. Chazon's uneventful pregnancy was followed by Dr. Klebanow and the appellant Dr. Herbert Tetenbaum, another member of the Parkway Medical Group. According to Dr. Klebanow's office notes, Mrs. Chazon's expected delivery date was on or about January 5, 1979.
Experts for both sides testified that the human placenta has a viable life of approximately 38 to 42 weeks. After 38 weeks, it tends to deteriorate, becoming progressively unable to supply nutrients and oxygen to the fetus it is supposed to nourish. In 1979, good obstetrical practice required the physician (1) to be aware of how long his patient had been pregnant, and (2) to perform estriol tests and oxytocin challenge (hereinafter OCT) tests on her after the forty-second week, to evaluate placental function and to see if the fetus was in distress because of lack of nutrients and/or oxygen. If these latter tests did not "assure" the doctor that the baby was "okay", labor should have been promptly induced or a Caesarian section performed, to obviate serious damage to the infant.
On January 18, 1979, when Mrs. Chazon had still not gone into labor, Dr. Klebanow ordered estriol and OCT tests. Despite the fact that the results of the test performed on January 23 were not reassuring and the results of the test performed on January 26 were "suspicious", he did not perform a Caesarian section until January 29, 1979. The child, Adam, born in Chazon's forty-fourth week of pregnancy, was severely brain damaged from hypoxia (lack of oxygen), retarded, paralyzed, and both hypotonic and spastic (i.e., afflicted with cerebral palsy).
The jury returned a verdict in favor of the plaintiff individually and as the parent and natural guardian of Adam, in the principal sum of $4,283,000, which the trial court reduced to the principal sum of $2,496,000.
The appellants contend, inter alia, that the trial court failed to properly relate the facts of the case to the parties' contentions, failed to properly instruct the jury on proximate cause, and submitted a misleading verdict sheet to the jury. They also argue that the testimony of the plaintiff's expert witnesses was inadequate and should have been stricken, and that the verdict was excessive. The appellants' contentions are without merit.
In the first instance, at no time did counsel for the appellants complain, in time for the trial court to cure the alleged defect, that the evidence had not been adequately marshalled, that the contentions read to the jury (in the precise form drafted and requested by their counsel) were unsatisfactory, or that there was anything wrong with the verdict sheet. In consequence, these issues are unpreserved for this court's review (cf., Knobloch v. Royal Globe Ins. Co., 38 N.Y.2d 471, 381 N.Y.S.2d...
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