BACKUS, DARNELL v. KALEIDA HEALTH ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    15
    CA 11-00620
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.
    DARNELL BACKUS, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    KALEIDA HEALTH, DOING BUSINESS AS BUFFALO
    GENERAL HOSPITAL, KENNETH BEASLEY, M.D., MARK
    LAFTAVI, M.D., DEFENDANTS-APPELLANTS,
    ET AL., DEFENDANT.
    RICOTTA & VISCO, BUFFALO (KEVIN A. RICOTTA OF COUNSEL), FOR
    DEFENDANT-APPELLANT KENNETH BEASLEY, M.D.
    ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (GREGORY T. MILLER OF
    COUNSEL), FOR DEFENDANTS-APPELLANTS KALEIDA HEALTH, DOING BUSINESS AS
    BUFFALO GENERAL HOSPITAL, AND MARK LAFTAVI, M.D.
    CAMPBELL & SHELTON, LLP, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR
    PLAINTIFF-RESPONDENT.
    Appeals from a judgment of the Supreme Court, Erie County (Diane
    Y. Devlin, J.), entered March 10, 2011 in a medical malpractice
    action. The judgment awarded plaintiff money damages upon a jury
    verdict.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law by granting the post-trial motions in
    part and setting aside the verdict with respect to the award of
    damages for future lost earnings and past and future pain and
    suffering only and as modified the judgment is affirmed without costs,
    and a new trial is granted on those elements of damages only unless
    plaintiff, within 20 days of service of a copy of the order of this
    Court with notice of entry, stipulates to reduce the award of damages
    for future lost earnings to $1,133,922, for past pain and suffering to
    $250,000, and for future pain and suffering to $750,000, in which
    event the judgment is modified accordingly and as modified the
    judgment is affirmed without costs.
    Memorandum: Plaintiff commenced this medical malpractice action
    seeking damages for injuries he sustained during a donor kidney
    transplant operation performed at defendant Kaleida Health, doing
    business as Buffalo General Hospital (Hospital). Defendant Kenneth
    Beasley, M.D. was the physician primarily responsible for plaintiff’s
    surgery, and defendant Mark Laftavi, M.D. was the physician primarily
    responsible for transplanting the kidney into the recipient,
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    CA 11-00620
    plaintiff’s mother, but he assisted at various times in plaintiff’s
    surgery as well. Following a trial, the jury returned a verdict
    finding that both Dr. Beasley and Dr. Laftavi were negligent and
    apportioning fault 80% to Dr. Beasley and 20% to Dr. Laftavi. The
    jury awarded plaintiff damages totaling $4,145,000, including, as
    relevant to this appeal, $2,000,000 for future lost earnings, $500,000
    for past pain and suffering, and $1,250,000 for future pain and
    suffering. The Hospital and Dr. Laftavi, who have taken an appeal
    separate from that of Dr. Beasley, made a post-trial motion seeking
    three types of alternative relief, including a reduction in the amount
    of damages awarded, and Dr. Beasley made his own post-trial motion
    also seeking that relief in the alternative.
    We reject the contention of defendants-appellants (defendants)
    that Supreme Court erred in charging the doctrine of res ipsa loquitur
    to the jury. We note at the outset that such a charge is appropriate
    where a plaintiff establishes three elements, i.e., “the event must be
    of a kind that ordinarily does not occur in the absence of someone’s
    negligence; . . . it must be caused by an agency or instrumentality
    within the exclusive control of the defendant; and . . . it must not
    have been due to any voluntary action or contribution on the part of
    the plaintiff” (Kambat v St. Francis Hosp., 89 NY2d 489, 494). As a
    result of the operation to harvest his right kidney, plaintiff
    sustained injuries to his cervical spine and rhabdomyolysis of muscles
    on the left side of his body. The operation, which all of the experts
    agreed normally should be only 2 to 3 hours in duration, took over 6
    hours to complete. During most of that time, plaintiff was positioned
    on his left side with both his head and lower body angled downward.
    We have recognized that generally where, as here, “an unexplained
    injury occurs in an area remote from the operation while the patient
    is anesthetized, the doctrine of [res ipsa loquitur] is available to
    establish a prima facie case” (Fogal v Genesee Hosp., 41 AD2d 468,
    475; see Ceresa v Karakousis, 210 AD2d 884).
    Defendants contend that the res ipsa doctrine is not applicable
    here because plaintiff’s injuries were not “caused by an agency or
    instrumentality within the exclusive control of [either] defendant”
    (Kambat, 89 NY2d at 494). Specifically, Dr. Beasley contends that the
    anesthesiologist, whose motion for a directed verdict at the close of
    proof was granted, also had responsibility for plaintiff’s
    positioning, while Dr. Laftavi contends that he had no control over
    plaintiff’s positioning. There was evidence, however, that both
    plaintiff’s positioning, which Dr. Beasley primarily controlled, and
    the length of the surgery, for which Dr. Laftavi was at least partly
    responsible, contributed to plaintiff’s injuries, and we have held
    that, “[i]n a multiple defendant action in which a plaintiff relies on
    the theory of res ipsa loquitur, a plaintiff is not required to
    identify the negligent actor” (Schmidt v Buffalo Gen. Hosp., 278 AD2d
    827, 828, lv denied 96 NY2d 710).
    Contrary to defendants’ further contention, the jury was entitled
    to credit the testimony of plaintiff’s expert establishing that the
    injuries sustained by plaintiff were “of a kind that ordinarily do[ ]
    -3-                            15
    CA 11-00620
    not occur in the absence of someone’s negligence” (Kambat, 89 NY2d at
    494; see Ceresa, 210 AD2d at 884). A plaintiff need not conclusively
    eliminate the possibility of all other causes of the injuries to be
    entitled to a charge on the doctrine of res ipsa loquitur. Rather,
    such a charge is appropriate if the evidence supporting the three
    requisite elements affords a rational basis for concluding that “ ‘it
    is more likely than not’ that the injur[ies were] caused by
    defendant[s’] negligence” (Kambat, 89 NY2d at 494).
    The Hospital and Dr. Laftavi further contend that the verdict
    against Dr. Laftavi was based on legally insufficient evidence and
    against the weight of the evidence because there was no proof that he
    unreasonably delayed the surgery. We reject that contention. There
    is circumstantial evidence in the record from which the jury could
    have rationally found that Dr. Laftavi was responsible for delaying
    the surgery for a substantial period of time, and the evidence does
    not “preponderate[] so greatly in [his] favor that the jury could not
    have reached its conclusion on any fair interpretation of the
    evidence” (Stewart v Olean Med. Group, P.C., 17 AD3d 1094, 1095-1096
    [internal quotation marks omitted]). There was testimony that
    Heparin, which was administered to plaintiff more than two hours
    before his kidney was harvested, normally would not be administered
    until the kidney was ready for removal. While Dr. Beasley testified
    that he administered Heparin to plaintiff on two occasions during the
    surgery, the surgical notes do not reflect as much. Moreover, both
    physicians were evasive in their testimony concerning the amount of
    time it took for Dr. Laftavi to arrive at the operating room to
    harvest plaintiff’s kidney, and it was within the jury’s province to
    discredit their testimony that there was no inordinate delay (see id.
    at 1096).
    We reject defendants’ contention that the remarks of plaintiff’s
    counsel on summation require a new trial. Even assuming, arguendo,
    that such comments were improper, we conclude that they were not “so
    flagrant or excessive” as to warrant a new trial (Winiarski v Harris
    [appeal No. 2], 78 AD3d 1556, 1558 [internal quotation marks
    omitted]). Defendants’ further contention that the verdict is
    inconsistent is not preserved for our review (see Potter v Jay E.
    Potter Lbr. Co., Inc., 71 AD3d 1565, 1567).
    We agree with defendants, however, that the jury’s awards of
    damages for future lost earnings and past and future pain and
    suffering deviate materially from what would be reasonable
    compensation (see CPLR 5501 [c]). Based on the evidence presented at
    trial, we conclude that $1,133,922 for future lost earnings, $250,000
    for past pain and suffering, and $750,000 for future pain and
    suffering are the maximum amounts the jury could have awarded. We
    therefore modify the judgment accordingly, and we grant a new trial on
    damages for future lost earnings and past and future pain and
    suffering only unless plaintiff, within 20 days of service of a copy
    of the order of this Court with notice of entry, stipulates to reduce
    the award of damages for future lost earnings to $1,133,922, for past
    pain and suffering to $250,000, and for future pain and suffering to
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    CA 11-00620
    $750,000, in which event the judgment is modified accordingly.
    Entered:   January 31, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 11-00620

Filed Date: 1/31/2012

Precedential Status: Precedential

Modified Date: 10/8/2016