Heraud v. WEISSMAN, MD
| Decision Date | 19 October 2000 |
| Citation | 714 N.Y.S.2d 476,276 A.D.2d 376 |
| Parties | DENIS M. HERAUD, Appellant,<BR>v.<BR>SCOTT S. WEISSMAN, M.D., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
The trial dismissal of plaintiff's abandonment complaint against defendant Dr. Fradin was proper since plaintiff failed to prove that he had been Dr. Fradin's patient, and proof of a physician-patient relationship is essential to a prima facie case of abandonment (see, Dillon v Silver, 134 AD2d 159, 162). Although Dr. Fradin conducted an initial consultation in which he confirmed that plaintiff required immediate retinal surgery, there was no evidence that Dr. Fradin had agreed to undertake plaintiff's surgical care.
The conflicting expert medical testimony presented as to the pivotal issue at trial, i.e., whether plaintiff sustained a retinal detachment prior to his last visit to Dr. Weissman in late February 1993, raised credibility issues properly left to the jury, whose verdict is supported by a fair interpretation of the evidence (Lichtenstein v Bauer, 203 AD2d 89). The jury was free to reject the opinion of Dr. Kraushar, plaintiff's expert, that Dr. Weissman failed to perform an adequate medical examination to timely diagnose the presence of a retinal tear, particularly in light of the contrary expert evidence offered by defendants that the detachment did not occur until on or about March 5, 1993, when plaintiff experienced dramatic symptoms classically associated with retinal detachment.
Plaintiff's post-trial motion to set aside the verdict and for a mistrial was properly denied. The court properly rejected plaintiff's argument that its preclusion of plaintiff's handwriting expert from testifying regarding alterations to Dr. Weissman's medical records deprived plaintiff of a fair trial. It was within the trial court's sound discretion to exclude "expert" testimony that was of questionable probative value and likely to involve distracting collateral issues (see, Fortunato v Dover Union Free School Dist., 224 AD2d 658). Plaintiff's argument, first raised in his post-trial motion, that the court failed to conduct an adequate inquiry to determine whether the jury was improperly influenced by a written copy of defendant's contentions inadvertently included with the exhibits that went into the jury room, is unpreserved and, in any case, without merit. The court properly exercised its discretion in denying a mistrial, having determined after it asked the...
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Dunn v. Khan, 2007 NY Slip Op 33311(U) (N.Y. Sup. Ct. 9/28/2007), 6494-05.
...had ever agreed to undertake plaintiffs decedent's care or had treated or advised the plaintiffs decedent. (Heraud v. Weissman, 276 A.D.2d 376, 714 N.Y.S.2d 476 (1st Dept., 2000); Murphy v. Blum, 160 A.D.2d 914, 554 N.Y.S.2d 640 [2d Dept., 1990]). Here, the decedent, Pauline Dunn, participa......
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Leffler v. Feld
...precluded because it "was of questionable probative value and likely to involve distracting collateral issues"( Heraud v. Weissman, 276 A.D.2d 376, 377, 714 N.Y.S.2d 476 [2000], lv. denied, 96 N.Y.2d 705, 723 N.Y.S.2d 131, 746 N.E.2d 186 [2001] ). The pre-deliberations substitution of an al......
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Lewis v. Capalbo
...the patient may be held liable for medical malpractice (O'Neill v Montefiore Hospital, 11 A.D.2d 132; Heraud v Weissman, 276 A.2d 376, 714 N.Y.S.2d 476). In this case, there are triable issues of fact as to whether Dr. Capalbo was Ms. Lewis's doctor and whether she departed from good medica......
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Pereira v. City of N.Y.
...The trial court providently exercised its discretion in denying plaintiff's motion for a mistrial ( see Heraud v. Weissman, 276 A.D.2d 376, 377, 714 N.Y.S.2d 476 [1st Dept. 2000], lv. denied96 N.Y.2d 705, 723 N.Y.S.2d 131, 746 N.E.2d 186 [2001] ). Defendants' counsel had an evidentiary basi......
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Expert witnesses
...was strong); Mariano v. Schuylerville Central School District, 309 A.D.2d 1116, 766 N.Y.S.2d 388 (3d Dept. 2003); Heraud v. Weissman, 276 A.D.2d 376, 714 N.Y.S.2d 476 (1st Dept. 2000). In general, expert witness testimony is admissible where the conclusions to be drawn depend on professiona......
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Submission to jury
...that the officer became involved in the subject investigation upon receiving “a call for a gun point-robbery.” Heraud v. Weissman , 276 A.D.2d 376, 714 N.Y.S.2d 476 (1st Dept. 2000). Reversal was not required where an item that had not been admitted into evidence accidentally got into the j......
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Submission to jury
...However, this constitutional error did not warrant a reversal because the judge gave a strong curative instruction. Heraud v. Weissman , 276 A.D.2d 376, 714 N.Y.S.2d 476 (1st Dept. 2000). Reversal was not required where an item that had not been admitted into evidence accidentally got into ......
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Expert witnesses
...900 (1995); Mariano v. Schuylerville Central School District, 309 A.D.2d 1116. 766 N.Y.S.2d 388 (3d Dept. 2003); Heraud v. Weissman, 276 A.D.2d 376, 714 N.Y.S.2d 476 (1st Dept. 2000). In general, expert witness testimony is admissible where the conclusions to be drawn depend on professional......