Torricelli v. Pisacano

• Decision Date: 08 July 2004
• Docket Number: 3319.
• Citation: 2004 NY Slip Op 05851,780 N.Y.S.2d 137,9 A.D.3d 291
• Parties: MARIA TORRICELLI, Individually and as Administratrix of the Estate of BLASCO TORRICELLI, Appellant-Respondent, v. ANTHONY M. PISACANO, M.D., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 291

780 N.Y.S.2d 137

2004 NY Slip Op 05851

MARIA TORRICELLI, Individually and as Administratrix of the Estate of BLASCO TORRICELLI, Appellant-Respondent, v. ANTHONY M. PISACANO, M.D., et al., Respondents-Appellants.

3319.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 8, 2004.

Judgment, Supreme Court, Bronx County (Paul Victor, J.),

entered September 11, 2003, which, following a jury trial, granted defendants' motion to set aside the verdict in favor of plaintiff, denied defendants' motion for judgment in their favor and ordered a new trial as to both liability and damages, unanimously modified, on the law, the facts and in the exercise of discretion, so as to deny defendants' motion to set aside the verdict as to liability and to order a new trial on damages, and otherwise affirmed, without costs, unless, within 30 days of service of a copy of this Court's order, plaintiff stipulates to a reduction in the verdict to $500,000 for the decedent's past pain and suffering and $50,000 for plaintiff's loss of services, and to entry of an amended judgment in accordance therewith.

In this action alleging medical malpractice in connection with surgery to extract a cataract from the decedent's right eye, the jury was asked to determine whether defendants departed from good and accepted standards of medical care by (1) failing to perform an anterior vitrectomy during the surgery and (2) failing to properly treat the postoperative swelling and/or edema in the decedent's eye. It found defendants liable on both issues and awarded plaintiff $1,000,000 in damages for the decedent's past pain and suffering and $1,000,000 on her claim for loss of services for the six years from October 16, 1995, the date of the surgery, to the decedent's death, of causes unrelated to this proceeding, on November 2, 2001.

Upon defendants' motion, the court set aside the verdict as against the weight of the evidence and ordered a new trial as to liability and damages. It found that plaintiff's expert's opinion that defendant should have performed a vitrectomy was undermined on cross-examination and that his circumstantially arrived at conclusions as to the postoperative edema in the decedent's eye were not supported by any fair interpretation of the evidence.

Plaintiff's expert, Dr. Ameet Goyal, testified that when an intracapsular cataract extraction is performed, the vitreous can move forward toward the front of the eye and, if allowed to remain there, can cause...