Houston v. Koszer

• Decision Date: 11 December 2019
• Docket Number: Index No. 4872/12,2016–04538
• Citation: 114 N.Y.S.3d 96,178 A.D.3d 781
• Parties: Patricia HOUSTON, et al., Appellants, v. Samuel Emanuel KOSZER, etc., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 781

114 N.Y.S.3d 96

Patricia HOUSTON, et al., Appellants,

v.Samuel Emanuel KOSZER, etc., Respondent, et al., Defendants.

2016–04538

Index No. 4872/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 30, 2019

December 11, 2019

Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis of counsel), for appellants.

Steinberg Symer & Platt, LLP, Poughkeepsie, NY (Ellen A. Fischer and Carol Poles of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (James W. Hubert, J.), entered March 29, 2016. The judgment, upon a jury verdict, and upon the denial of the plaintiffs' motion pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendant Samuel Emanuel Koszer and against the plaintiffs dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

This action involves allegations of medical malpractice stemming from the medical treatment of the plaintiff Patricia Houston (hereinafter the plaintiff) by the defendant Samuel Emanuel Koszer (hereinafter the defendant) after she fell seriously ill during a multi-day music festival that she was attending in July 2011 with her husband, the plaintiff Colin Houston. At a jury trial, the following was elicited. On Sunday, July 17, 2011, at approximately 2:30 a.m., the plaintiff's husband found her unconscious and she was taken by ambulance to Columbia Memorial Hospital (hereinafter CMH). The doctors at CMH determined that the plaintiff's sodium level was critically low, so she was gradually administered saline to correct this condition. By 8:10 a.m., the plaintiff was assessed as nonresponsive, and at 11:30 a.m., she had a seizure. An order for a neurology consultation was written at 11:33 a.m. and was scanned in at 11:43 a.m. to the defendant's medical group, which had a contract with CMH to provide neurologic services Mondays through Fridays. The order did not note a need for urgency.

The defendant's practice was not aware of the order until the morning of Monday, July 18, 2011, when the office opened.

On Monday, July 18, 2011, at 5:00 p.m., the neurological consultation was performed by a nurse practitioner. The defendant received a report from the nurse practitioner and proceeded to work up a differential diagnosis, concluding that the plaintiff had many symptoms of Central Pontine Myelinolysis (hereinafter CPM), including seizures, slurred speech, weakness of motor system in the extremities, and very low sodium levels. The defendant examined the plaintiff at approximately 8:30 a.m. the next day—July 19, 2011—and noticed that she had lost sensation in her legs. The defendant ordered a lumbar MRI, which confirmed a spinal cord injury and was not consistent with CPM. The MRI results reflected that the plaintiff had suffered a burst lumbar fracture with Cauda Equina Syndrome (hereinafter CES), although CES's hallmark symptom of saddle anesthesia was not present for the plaintiff. CES is a very rare condition that involves the compression of the nerves at the base of the spinal cord which, if left untreated, can cause permanent loss of function below the waist.

On July 19, 2011, the plaintiff was transferred to Vassar Brothers Medical Center, which was better equipped to perform the necessary surgery. After surgery was performed on July 22, 2011, the plaintiff was discharged the following week to Helen Hayes Hospital for rehabilitation, and remained there until early November 2011. The plaintiff presently requires the use of a wheelchair or crutches to ambulate, and requires at least four medications to treat pain and muscle spasms.

Following the jury trial, the jury returned a verdict in favor of the defendant and against the plaintiffs. The plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion, and the plaintiffs appeal from a judgment in favor of the defendant and against the plaintiffs dismissing the complaint.

The standard for determining whether a jury verdict was contrary to the weight of the evidence is "whether ‘the evidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence’ " ( Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163, quoting Moffatt v. Moffatt, 86 A.D.2d 864, 864, 447 N.Y.S.2d 313...