Liyanage v. Amann
| Decision Date | 06 May 2015 |
| Docket Number | 2013-01226 |
| Citation | 2015 N.Y. Slip Op. 03808,8 N.Y.S.3d 390,128 A.D.3d 645 |
| Parties | Don LIYANAGE, respondent, v. Laura AMANN, etc., appellant. |
| Court | New York Supreme Court — Appellate Division |
128 A.D.3d 645
8 N.Y.S.3d 390
2015 N.Y. Slip Op. 03808
Don LIYANAGE, respondent
v.
Laura AMANN, etc., appellant.
2013-01226
Supreme Court, Appellate Division, Second Department, New York.
May 6, 2015.
Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg, Stewart G. Milch, and Arjay G. Yao of counsel), for appellant.
Joel M. Kotick, New York, N.Y., for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Opinion
In an action, inter alia, to recover damages for dental malpractice,
the defendant appeals from a judgment of the Supreme Court, Richmond County (Marin, J.), dated
August 28, 2012, which, upon a jury verdict on the issue of liability finding her at fault for the plaintiff's injuries, and upon a separate jury verdict on the issue of damages finding that the plaintiff sustained damages in the principal sums of $30,000 for past pain and suffering and $400,000 for future pain and suffering, and upon an order of the same court dated May 1, 2012, denying her motion pursuant to CPLR 4404(a), inter alia, to set aside the verdict on the issue of liability and for judgment as a matter of law dismissing the complaint or, in the alternative, to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial, is in favor of the plaintiff and against her in the principal sum of $430,000.
ORDERED that the judgment is reversed, on the facts, with costs, that branch of the defendant's motion which was to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence is granted, the order dated May 1, 2012, is modified accordingly, and the matter is remitted to the Supreme Court, Richmond County, for a new trial on the issues of liability and damages in accordance herewith.
On January 16, 2008, the plaintiff went to the emergency room of Richmond University Hospital (hereinafter the hospital) complaining of a fever, cough, chest pain, and nasal congestion. A routine chest X ray revealed the presence of a metallic object in the plaintiff's left lower lung which, upon further tests, including several CT scans, “appear[ed] to be a medical device.”
The plaintiff commenced this action against the defendant, Dr. Laura Amann, who was his treating dentist from April 1, 2006, through February 2, 2008. The plaintiff alleged that, while performing a diagnostic procedure, the defendant had negligently broken the instrument she was using, causing its metal tip, or burr, to fall into his mouth, as a result of which he aspirated the burr into his left lung. Prior to coming under the defendant's care, the plaintiff received dental treatment from a dentist at nonparty Eldridge Dental (hereinafter Eldridge), where his last visit was on April 14, 2005.
The jury found that a piece of a dental instrument went into the plaintiff's lung during his course of treatment by the defendant, that the defendant departed from accepted dental practice resulting in that piece going into the plaintiff's lung, and also departed by failing to monitor or diagnose the plaintiff's condition or advise him, and that those departures were substantial factors in causing the plaintiff's injuries.
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...simultaneously was the proximate cause of the infection. (See Bernstein v. City of New York, 69 N.Y.2d 1020 [1987]; Liyange v. Amann, 128 A.D.3d 645 [2d Dept 2015]). Further, the fact that Jeanne Marie has previously taken Augmentin, and the protein pump inhibitor for many years without inc......