Reitzel v. Hale, 28224/2001.
| Decision Date | 08 April 2013 |
| Docket Number | No. 28224/2001.,28224/2001. |
| Citation | 39 Misc.3d 1208,2013 N.Y. Slip Op. 50542,971 N.Y.S.2d 74 |
| Parties | Sabrina REITZEL and Matthew Reitzel, Plaintiff(s), v. Theodore HALE, MD, Medical Arts Obstetrics & Gynecology, P.C., Defendant(s). |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
John L. Juliano, Esq., Hillside Building, East Northport, NY, attorney for plaintiffs.
Shaub, Ahmuty, Citrin & Spratt, LLP, by William G. Spratt, Lake Success, NY, attorneys for defendants.
Upon the reading of the following papers: (1); Notice of Motion dated May 31, 2012, by plaintiffs including supporting papers and exhibits; (2) Affirmation In Opposition dated August 8, 2012 by defendants including supporting papers and exhibits; (3) Reply Affirmation dated September 12, 2012 by plaintiff including exhibits; (4) Oral Argument held in this Court on February 7, 2013; and now,
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the plaintiff's motion pursuant to CPLR Rule 4404(a) to set aside the verdict is denied.
The plaintiff brings this CPLR Rule 4404(a) motion to set aside a medical malpractice verdict rendered in this case on May 11, 2012, as contrary to the weight of the evidence and in the interest of justice.1 It is undisputed that the plaintiff, Sabrina Reitzel, entered the hospital on January 7, 2001, to give birth and that her obstetrician, defendant Dr. Theodore Hale, determined that a Cesarian Section was necessary. Further, it is undisputed that during the Cesarian Section performed on January 8, 2001, the plaintiff began to hemorrhage and the defendant Dr. Hale performed a Supracervical Hysterectomy and removed the plaintiff's uterus. Sometime after being released from the hospital, the plaintiff experienced problems relating to urine flow and incontinence, and required a nephrostomy and subsequent re-implantation of her left ureter.
At issue are two separate sets of questions relating to theories of liability. First, pursuant to question number 5 on the verdict sheet, the jury found by a fair preponderance of the credible evidence that the defendant Theodore Hale, M.D. departed from good and accepted medical practice in the manner in which he attempted to control the maternal hemorrhage. Pursuant to question number 6, however, the jury found that this departure was not a substantial factor in causing plaintiff Reitzel's injuries, to wit: a hysterectomy which resulted in the removal of the plaintiff's uterus thereby rendering her unable to bear children.
Next, pursuant to question number 7, the jury found by a fair preponderance of the credible evidence that the defendant Theodore Hale, M.D. departed from good and accepted medical practice by not identifying and protecting the plaintiff's left ureter during the Cesarean Section and Supracervical Hysterectomy performed on Jan 8, 2001. It went on to find pursuant to question number 8, however, that this departure was not a substantial factor in causing the plaintiff's injuries, to wit: damage to her left ureter resulting in a nephrostomy and subsequent re-implantation of the left ureter.
A jury verdict in favor of a defendant may not be set aside as being against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (Landau v. Rappaport, 306 A.D.2d 446 [2d Dept 2003]; Nicastro v. Park, 113 A.D.2d 129, 134 [2d Dept 1985] ). “A jury finding that a party was negligent but that such negligence was not a proximate cause of an incident is inconsistent and against the weight of the evidence when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Ferrante v. County of Nassau, 301 A.D.2d 565, 566 [2d Dept 2003] ). The test is not whether the jury erred in weighing the evidence presented, but whether any viable evidence exists to support the verdict (Cambridge Assocs. v. Town of North Salem, 282 A.D.2d 702 [2d Dept 2001]; 370 Hamilton Ave. Corp. v. Allied Outdoor Advertising, Inc., 258 A.D.2d 517 [2d Dept 1999]; Matter of Tokarz, 199 A.D.2d 400 [2d Dept 1993] ).
The plaintiff argues that the jury's finding that Dr. Hale was negligent in the way he tried to control the plaintiff's bleeding but that this negligence was not a proximate cause of the plaintiff's injuries, is against the weight of the evidence and not based on a fair interpretation of the evidence. She asserts that the finding of negligence in the manner in which the defendant attempted to control the hemorrhage is so inextricably interwoven with her injuries (the hysterectomy and inability to bear children) as to make it impossible to find negligence without also finding that such negligence was a proximate cause of these injuries.
At trial, the jury found (in question number 5) that defendant Dr. Hale departed from good and accepted medical practice by not utilizing the appropriate standard(s) of care in the manner in which he attempted to control the plaintiff's bleeding. This finding of negligence is not being challenged by the defendant. Furthermore, all experts and witnesses agreed that the failure to stop the plaintiff's bleeding necessitated the removal of her uterus and resulted in her inability to bear children. In her moving papers, the plaintiff argues that her expert opined that good and accepted medical practice required that Dr. Hale attempt to control the hemorrhage by suturing the uterine artery and if that failed, by suturing the hypogastric arteries which feed the uterine arteries. In addition, all experts agreed that when the bleeding started, good and accepted medical practice required that uterotonics such as Methergine, Carboprost and Pitocin, be administered to cause the uterus to contract. The plaintiff's theory was that had the defendant Doctor utilized the correct methods, he would have controlled the bleeding and it would not have been necessary to remove her uterus.
Dr. Hale testified that the first thing he did in an attempt to stop the bleeding was give all three uterotonics: Methergine, Carboprost and Pitocin.2 Dr. Hale further stated that while he did not attempt to suture the hypogastric arteries, he did attempt to suture the uterine artery. He also said that when his attempts to stop the hemorrhaging failed, he had to immediately perform a hysterectomy in order to save plaintiff's life because she had already lost approximately 50% of her blood. Moreover, Dr. Hale testified that in this particular case, performing ligation upon any other arteries or veins (i.e. a hypogastric ligation) would not have stopped the obstetrical hemorrhage. In addition, the defendant's expert testified that performing a hypogastric ligation would not have been appropriate under these circumstances as the plaintiff could have bled to death before the procedure was completed. The defense expert stated that a hypogastric ligation is an extremely dangerous procedure because the hypogastric artery is located in close proximity to the hypogastric vein and any attempt to ligate...
To continue reading
Request your trial