Roseingrave v. Massapequa General HospitalRoseingrave v. Massapequa General Hospital
In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an amended judgment of the Supreme Court, Suffolk County (Gerard, J.), entered August 4, 2000, as (a) upon the granting of the separate motions of the defendants Morton H. Rothstein, Leonard A. Berlin, John Mark, and Judith Mark, pursuant to CPLR 4401 to dismiss the complaint insofar as asserted against them for failure to establish a prima facie case, made at the close of the plaintiff’s case, dismissed the complaint insofar as asserted against those defendants, (b) upon a jury verdict, is in favor of the dеfendants Massapequa General Hospital and Robert H. Mashioff, dismissing the complaint insofar as asserted against them, and (c) upon a jury verdict in his favor and against the defendant Lester J. Van Ess, and upon the denial of his motion to set aside the damages verdict as against the weight of the evidence, failed to award him special damages for medical expenses and lost earnings, and awarded him only the principal sum of $100,000 for past and future pain and suffering.
Ordered that the amended judgment is modified by deleting the provision thereof awarding the plaintiff damages in the principal sum of $100,000 fоr past and future pain and suffering, and the matter is remitted to the Supreme Court, Suffolk
On January 9, 1992, the plaintiff, James Roseingrave, was admitted to Massapequa General Hospital suffering from severe chest and upper abdominal pain. One week later, on January 16, 1992, the defendant Dr. Lester Van Ess performed an exploratory laparotomy on the plaintiff to remove a bowel obstruction. During the course of this procedure, an approximately three-inch section of the plaintiffs small intestine was removed. However, shortly thereafter, the plaintiffs bowel again became obstructed, requiring a second surgery on January 31, 1992. In the course of the second operation, Dr. Van Ess removed three sections of the plaintiffs small intestine, totaling over four feet in length. While the plaintiff was in the hospital recovering from the two surgeries, a blockage in the ureter caused the functioning of his right kidney to deteriorate. On March 28, 1992, the defendant Dr. Robert Mashioff performed surgery to remove the blockage in the plaintiffs ureter. The third surgical procedure resulted in the removal of the plaintiffs right kidney.
The plaintiff subsequently commenced this medical malpractice action against the hospital and the two surgeons who operated on him, Dr. Van Ess and Dr. Mashioff. Dr. Leonard Berlin, who was the plaintiffs attending physician during his hospitalization, Drs. John Mark and Morton Rothstein, who assisted Dr. Van Ess during surgery, and Dr. Judith Mark were also named as defendаnts. At trial, the plaintiff claimed, inter alia, that Dr. Van Ess had committed malpractice by performing the first operation when his bowel was no longer obstructed, and by removing an excessive amount of his intestine during the second procedure. The plaintiffs theory of liability against the hospital was that a radiologist in its employ committed malpractice by failing to report that an x ray he reviewed one day prior to the first surgery indicated that the bowel obstruction had been relieved. In addition, the plaintiff alleged that Dr. Mashioff committed malpractice by failing to drain an accumulatiоn of fluid from behind his kidney, and by removing a viable kidney.
At the close of the plaintiffs case, the trial court granted the separate motions of Drs. Berlin, Rothstein, John Mark, and Judith Mark for judgment as a matter of law on the ground that the plaintiff failed to establish a prima facie case. The jury subsequently returned a verdict finding that Dr. Van Ess had departed from good and accepted medical practice by removing
Contrary to the plaintiffs contention, the trial court properly granted the motions of four of the defendant physicians for judgment as a matter of law at the closе of his case. To establish a prima facie case of liability in a medical malpractice action, the plaintiff must prove that the defendant physician deviated or departеd from good and accepted standards of medical practice, and that the departure was the proximate cause of injury or damage (see Prestia v Mathur,
Furthermore, we reject the рlaintiffs contention that the verdict in favor of Dr. Mashioff and the hospital is against the weight of the evidence. The standard to be applied on a challenge to a jury verdict in favor of a dеfendant is whether the
However, the trial court should have granted the plaintiffs motion to set aside the verdict on the issue of damages. The jury’s determination that the plaintiff was not entitled to any damagеs for his past medical expenses or lost earnings was inconsistent with its finding that Dr. Van Ess was liable on the theory that he removed an excessive portion of the plaintiffs intestine during the second opеration, and awarding the plaintiff damages for past and future pain and suffering. Moreover, while there was evidence from which the jury could have concluded that not all of the special dаmages claimed by the plaintiff arose from the removal of portions of his small intestine, the determination that he suffered no such damages is against the weight of the evidence (see Hothan v Metropolitan Suburban Bus Auth.,
We note that during the course of the trial, a keenly disрuted question of fact arose as to whether the plaintiffs cecum and ileocecal valve were removed during the second surgery. The
It is well settled that counsel during summation may сomment “upon every pertinent matter of fact bearing upon the questions the jury have to decide” (Williams v Brooklyn El. R.R. Co.,
We have examined the plaintiffs remaining contentions, and find that they are either unpreserved for appellate review, without merit, or do not warrant a new liability trial. Krausman, J.P., Goldstein, McGinity and Adams, JJ., concur.