Nussbaum v. Gibstein
| Decision Date | 05 July 1988 |
| Citation | 138 A.D.2d 193,531 N.Y.S.2d 276 |
| Parties | Linda NUSSBAUM, etc., Respondent, v. Alan GIBSTEIN, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
LeBoeuf, Lamb, Leiby & MacRae, New York City (Michael A. Ellenberg, Ellen August and Bert H. Ware, of counsel), for appellants.
Kramer, Dillof, Tessel, Duffy & Moore, New York City (Norman E. Frowley, of counsel), for respondent.
Before THOMPSON, J.P., and BROWN, EIBER and SULLIVAN, JJ.
THOMPSON, Justice Presiding.
We address on this appeal, inter alia, whether loss of enjoyment of life is a compensable element of damages apart from a specific award of damages for pain and suffering. The trial court's instructions to the jury and its submission of interrogatories permitted the jury to assess the loss of enjoyment of life as a distinct item of damages. Upon the facts of this particular case, we find that the trial court did not err in delivering a loss of enjoyment of life instruction in addition to the usual instruction pertaining to pain and suffering. The question of whether an award of damages for loss of the normal pursuits and pleasures of life is encompassed within general damages for pain and suffering or constitutes a separate category of damages is essentially semantical because a clear distinction may be drawn between the concepts of pain and suffering and loss of enjoyment of life. Permitting an independent award for loss of enjoyment simply enunciates this court's recognition of the conceptual differences between these two types of damages. We therefore affirm the judgment in favor of the plaintiff in its entirety.
The following facts giving rise to this controversy are essentially not in dispute. On September 21, 1982, the plaintiff's decedent, 32-year-old Elaine Celetti, visited her gynecologist, the defendant Dr. Alan Gibstein, for her annual check-up. At that time, Dr. Gibstein made note of a one-centimeter mass on the outside lower quadrant of Mrs. Celetti's left breast which he tentatively classified as a galactocele, i.e. a milk-filled cyst. No further tests were performed. Ten months later in July 1983 Mrs. Celetti returned to Dr. Gibstein complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in Mrs. Celetti's breast was diagnosed as cancer which had metastasized, i.e. spread, to three ribs and two vertebrae. Elaine Celetti died nearly two years later on June 8, 1985, as a result of the extensive metastasis of the cancer leaving as the sole distributee of her estate her then four-year-old daughter Jessica.
In this action commenced to recover damages for conscious pain and suffering and wrongful death, Dr. Gibstein and his professional corporation are charged with various acts of malpractice stemming from his failure to properly diagnose Mrs. Celetti's breast cancer and to provide appropriate medical care and treatment. The jury, after finding the defendants 90% liable and the plaintiff's decedent 10% contributorily negligent, rendered the following itemized award of damages, in accordance with the court's instructions and special interrogatories:
A. First Cause of Action
1. Conscious Pain and Suffering $300,000
2. Loss of Enjoyment of Life $200,000
---------
$500,000
B. Wrongful Death Cause of Action
1. Loss of Support $ 75,000
2. Loss of household services $100,000
3. Cost of college education in the future $ 25,000
4. Loss of prospective inheritance $ 75,000
5. Loss of parental guidance, care and nuture $100,000
---------
$375,000.
The defendants immediately moved to set aside the verdict on the grounds, inter alia, that as to liability the verdict was against the weight of the evidence and inconsistent. The defendants further charged that the damages awarded were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the plaintiff's decedent. The reductions made as to the total amounts awarded on each cause of action are reflected in the judgment as follows:
First Cause of Action $450,000
Wrongful Death Cause of Action $337,500
--------
$787,500
The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The defendants appeal, arguing that (1) the verdict as to liability is against the weight of the credible evidence adduced at the trial, (2) the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and (3) the awards to Mrs. Celetti's child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.
We affirm the trial court's denial of the defendants' motion to set aside the verdict in favor of the plaintiff as against the weight of the evidence. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence ( see, Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184). On such a review, the evidence must be viewed in a light most favorable to the plaintiff to determine whether a sufficient rational basis exists to support the jury's finding of liability as to the defendant ( see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 497, 410 N.Y.S.2d 282, 382 N.E.2d 1145). So viewed, we find ample basis in the record to support the jury's verdict.
One of the key issues in controversy at trial was whether the lump Dr. Gibstein first noticed in Elaine Celetti's breast in September 1982 was the same as the cancerous tumor surgically removed from the decedent's breast one year later. Dr. Gibstein, a specialist in obstetrics and gynecology who had also completed a fellowship in oncology, first noted the lump measuring one centimeter in size in Mrs. Celetti's breast during a routine physical examination performed in September 1982. Apparently because of the decedent's history of being cystic, Dr. Gibstein was not overly concerned about the lump upon its initial appearance. According to Dr. Gibstein's trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, Dr. Gibstein advised Mrs. Celetti to return for a follow-up examination in two or three months. Dr. Gibstein conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the decedent to examine her breasts during the intervening period. Dr. Gibstein's office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to Mrs. Celetti.
Upon the decedent's return to his office 10 months later in July 1983 Dr. Gibstein examined the lump of which the decedent then complained and was of the opinion that while it was near the site of the September 1982 lump, the respective masses were in fact in entirely different locations. Dr. Gibstein, fearing the lump might be cancerous, directed Mrs. Celetti to return for a reexamination following her next menstrual period. In August 1983 Dr. Gibstein recommended that the decedent undergo a mammography and, based upon those results, he referred her to Dr. Louis Lester for a surgical consultation. Dr. Gibstein learned from Dr. Lester that the decedent had been diagnosed as having intraductal, infiltrating duct carcinoma with a finding of distant metastasis. A stage four cancer 1 of the type Mrs. Celetti was diagnosed as having in September 1983 had an extremely poor prognosis. In response to a hypothetical posed by plaintiff's counsel, Dr. Gibstein conceded that if the lump found in September 1982 was cancerous, it would have been a stage one cancer with an excellent rate of survival.
In the course of Mrs. Celetti's examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that Dr. Gibstein had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the decedent to return to Dr. Gibstein in July 1983. During that examination, Mrs. Celetti saw a diagram in her file with an "X" where the lump was. To her surprise, Dr. Gibstein had been aware of the lump, identified it as a cyst and reassured her that he was "watching it". No recommendation was issued that a mammography be performed or another physician be consulted. Dr. Gibstein simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted Dr. Lester upon the defendant's recommendation did Mrs. Celetti learn the gravity of her condition. Dr. Lester was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a...
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