Raniola v. Montefiore Medical Center , 926 N.Y.S.2d 468 ( 2011 )

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered August 21, 2009, which denied defendant Montefiore Medical Center’s motion for judgment notwithstanding the verdict and granted the alternative relief of setting aside the jury verdict awarding plaintiff $3 million for four years of past pain and suffering, unless the parties, within 30 days, filed a stipulation settling the case for $750,000, modified, on the facts, to direct a new trial on the issue of damages for past pain and suffering, unless plaintiff stipulates, within 30 days of service of a copy of this order with notice of entry, to an award of $500,000 and to entry of a judgment in accordance therewith, and otherwise affirmed, without costs.

In late October 1998, plaintiffs decedent underwent surgery at Montefiore to amputate his right leg below the knee, a procedure necessitated by his diabetes. Some eight hours after the procedure, for which he had been given local anesthesia and sedatives, the decedent fell from his hospital bed and fractured his left hip. In deposition testimony read to the jury, the decedent’s wife, who visited him in the hospital in the days following the fall, testified that the decedent did not remember how he fell. Notwithstanding this testimony and the decedent’s initial deposition testimony that he did not know how the fall occurred and that “maybe” a nurse had failed to raise a side rail of the bed, the jury’s finding that Montefiore negligently caused the decedent’s injury was supported by sufficient evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Nor can we conclude that the verdict was against the weight of the evidence (see McDermott v Coffee Beanery; Ltd., 9 AD3d 195, 206 [2004]). Given the testimony of the decedent’s expert, the jury could reasonably have rejected the testimony of the attending nurse and found that she failed to raise the guard rails flanking the bed when she left the room to change the decedent’s bedpan, in violation of hospital protocol, and that the decedent fell to the floor as he attempted to reach the call button. The decedent’s hip was surgically repaired with internal screws, which later caused what the decedent characterized as severe pain whenever he attempted to walk using a prosthetic limb.

The decedent, who was 63 years old at the time of the fall, also suffered from chronic kidney failure, which was treated with dialysis, and heart disease. Before his fall from the hospital bed, in two earlier surgical procedures also necessitated by his diabetes, the decedent’s right big toe and half of his right foot were amputated. In December 2001, the decedent’s left leg was amputated because of his diabetes. The next year, four years after the fall, the decedent died of a heart attack.

The damages in question were awarded for the decedent’s past pain and suffering during the four years between his hospital accident and his death. There is no indication in the record that the parties ever stipulated to reduce the jury’s award to $750,000, as called for by the trial judge. In the absence of such a stipulation, we have the authority to review and determine whether the award deviates materially from what would be reasonable compensation (CPLR 5501 [c]). The trial judge’s finding that the award should be reduced was appropriate (see Kahl v MHZ Operating Corp., 270 AD2d 623 [2000]), but, in our view, the reduced award still deviates materially from the reasonable standard to the extent indicated (see Caldas v City of New York, 284 AD2d 192 [2001] [as reflected in the record, award of $375,000 for past pain and suffering over six years for two hip fractures]). Concur — McGuire, Freedman and Abdus-Salaam, JJ.