Sachs v. Nassau County

• Decision Date: 12 June 1989
• Citation: 151 A.D.2d 558,542 N.Y.S.2d 337
• Parties: David SACHS, Respondent-Appellant, v. NASSAU COUNTY, et al., Appellants-Respondents, Peter Kong-Wah Chak, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 337

542 N.Y.S.2d 337

151 A.D.2d 558

David SACHS, Respondent-Appellant, v. NASSAU COUNTY, et al., Appellants-Respondents, Peter Kong-Wah Chak, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 12, 1989.

Edward T. O'Brien, Co. Atty., Mineola (Robert O. Boyhan and Gerald R. Podlesek, of counsel), for appellants-respondents.

Pegalis & Wachsman, P.C., Great Neck (James B. Baydar and Deborah A. Dyckman, of counsel), for respondent-appellant.

Before MANGANO, J.P., and BRACKEN, KUNZEMAN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death and conscious pain and suffering, the defendants Nassau County and Nassau County Medical Center appeal from so much of a judgment of the Supreme Court, Nassau County (Velsor, J.), entered March 8, 1988, as, upon a jury verdict finding them 15% at fault with respect to the plaintiff's cause of action to recover damages for pain and suffering, is in favor of the plaintiff and against them in the principal sum of $150,000, and the plaintiff has filed a notice of cross appeal from the judgment.

ORDERED that the cross appeal is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.20[d], [f]; Cooper v. Bosse, 85 A.D.2d 616, 444 N.Y.S.2d 955); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

Because causation is always a difficult issue in a medical malpractice case (see, Matott v. Ward, 48 N.Y.2d 455, 461-462, 423 N.Y.S.2d 645, 399 N.E.2d 532; Mertsaris v. 73rd Corp., 105 A.D.2d 67, 82, 482 N.Y.S.2d 792), "it bears emphasizing that to establish a prima facie case a plaintiff need not eliminate entirely all possibility that a defendant's conduct was not a cause. It is enough that he offer sufficient evidence from which reasonable men might conclude that it was more probable than not that the injury was caused by the defendant" (Mertsaris v. 73rd Corp., supra, at 83, 482 N.Y.S.2d 792). In a wrongful death case the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give evidence (see, Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744) and is entitled to the benefit of every favorable inference which can be reasonably drawn from the evidence in determining whether a prima facie case has been made out (Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535).

The appellants do not deny they committed medical malpractice in failing to treat the plaintiff decedent's symptoms following her admission to their emergency facilities. Instead, they claim that the evidence supported a finding that this failure did not cause her to suffer additional pain and suffering. However, the jury was not bound to accept the appellants' expert's testimony that the treatment t...