Stafford v. Molinoff ( 1996 )

In May 1986 the defendant Abraham Halfen performed abdominal surgery on the plaintiff and accidentally left a laparotomy pad in the plaintiff’s abdomen. The plaintiff subsequently commenced this action against Halfen and others, claiming, in relevant part, that Halfen’s actions constituted medical malpractice.

Halfen’s expert disclosure statement revealed that he planned to call board-certified physicians as experts during trial. Nevertheless, during the trial, Halfen presented the expert testimony of a registered nurse with substantial operating-room experience. The nurse testified that operating-room nurses, and not surgeons, were responsible for making sure that no foreign objects remained in a patient’s body at the end of surgery. The jury found, in relevant part, that Halfen was not responsible for the plaintiff’s injuries. On December 8, 1994, the Supreme Court entered judgment on the jury verdict in Halfen’s favor dismissing the complaint. We affirm.

The trial court properly exercised its discretion in allowing the nurse to testify as an expert on Halfen’s behalf (see, CPLR 3101 [d] [1] [i]; Lesser v Lacker, 203 AD2d 181; Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004). The plaintiff cannot claim surprise or prejudice with regard to the content of the nurse’s testimony. The record clearly reflects that the plaintiff anticipated that Halfen’s defense would be that it was the operating-room nurses’ responsibility to ensure that no foreign objects remained in the patient’s body at the conclusion of surgery. Under these* circumstances, it cannot be said that the plaintiff suffered any real surprise or prejudice as a result of Halfen’s failure to disclose that one of his experts would be a nurse.

Moreover, upon the exercise of our factual review power, we find that the verdict was supported by a fair interpretation of the evidence (see, Holt v New York City Tr. Auth., 151 AD2d 460; Picciallo v Norchi, 147 AD2d 540; Nicastro v Park, 113 AD2d 129). O’Brien, J. P., Sullivan, Florio and McGinity, JJ., concur.