Panzarino v. Carella
| Decision Date | 17 February 1998 |
| Citation | 669 N.Y.S.2d 301,247 A.D.2d 521 |
| Parties | , 1998 N.Y. Slip Op. 1550 Carol PANZARINO, Respondent-Appellant, v. Anthony CARELLA, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Dubois, Billig, Loughlin, Conaty & Weisman (Kenneth Mauro, Great Neck, of counsel), for appellant-respondent.
Whalen & Whalen, Cross River (James T. Whalen, Jr., of counsel), for respondent-appellant.
Before MANGANO, P.J., and BRACKEN, COPERTINO and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, the defendant appeals from (1) a judgment of the Supreme Court, Westchester County (DiBlasi, J.), dated December 11, 1996, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $200,000, and (2) an order of the same court dated February 27, 1997, which denied the defendant's post judgment motion to set aside the verdict or to reduce the award of damages. The plaintiff cross-appeals from the judgment on the ground that the judgment failed to award her damages for future pain and suffering.
ORDERED that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial is granted on the issue of damages for past pain and suffering, unless within 30 days after service upon the plaintiff of a copy of this decision and order with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Westchester County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from $200,000 to $100,000 and to the entry of an amended judgment accordingly. In the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements; and it is further,
ORDERED that the order is modified accordingly, without costs or disbursements.
The plaintiff sued the defendant for malpractice alleging that the defendant improperly treated her after performing arthroscopic knee surgery on January 30, 1990, during which the defendant made four small openings or portals on the plaintiff's left knee. At trial, the plaintiff and her mother testified that at a follow-up visit on February 5, 1990, the defendant told the plaintiff that she could shower and resume household activities even though one of the portals was open. The defendant testified that the portals were dry and sealed and in the process of healing. Thereafter, the plaintiff developed an infection in her knee which required a second procedure. She remained in the hospital for 18 days during which time she received antibiotics intravenously. She had to use crutches for an additional two weeks. The plaintiff's expert testified that if one of the portals were open at the time of the plaintiff's visit with the defendant on February 5, 1990, the defendant's instructions to the plaintiff during that visit were a departure from acceptable medical standards.
The defendant's contention that the verdict was against the weight of the credible evidence is without merit. The operative factor in a court's determination whether to set aside the verdict is a finding that "the jury could not have reached the verdict on any fair interpretation of the evidence" (Delgado v....
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