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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE VERDICT SHEET DID NOT REFLECT THE TRIAL EVIDENCE ON THE APPLICABLE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to set aside the defense verdict in this medical malpractice case should have been granted. Plaintiff alleged her bowel was perforated during surgery. The defense expert testified the bowel must be fully inspected as it is replaced, section by section. However, defendant surgeon testified he did not fully inspect the bowel. In addition the jury was asked to determine whether the bowel was subjected to a “focused inspection.” However there was no trial evidence equating a “focused inspection” with the standard of care. A new trial was necessary:

The weight of the evidence greatly preponderates in favor of plaintiff due, in no small part, to defendant’s testimony that he not only failed to perform a “focused inspection” of the bowel, but that “[he could not] not observe it” as he returned it into plaintiff’s abdomen. In not “observing” the bowel, defendant plainly could not have conducted a careful visualization of the body part as it was returned to plaintiff’s body; therefore he was plainly not performing a “focused inspection.” Defendant also admitted that “[he] didn’t specifically look for [bruising]” of the bowel, which his own expert testified is required when inspecting the bowel during an aortobifemoral bypass surgery.

Defendant also testified that he only looked at the bowel’s top side. Although his expert did not testify that defendant was personally required to view the other side, she did explain that the other surgeon in the operating room must view that side so that both surgeons, collectively, can view the entire bowel. Defendant did not testify that he ensured that the assisting surgeon carefully viewed the back side of the bowel, segment by segment. Moreover, the assisting surgeon did not testify that defendant instructed her to do so. Inasmuch as defendant’s conduct does not meet the standard articulated by the expert witnesses, we conclude that the evidence so preponderates in plaintiff’s favor that the court erred in denying her motion to set aside the verdict … Monzon v Porter, 2019 NY Slip Op 04855, Fourth Dept 6-14-19

 

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THE MAJORITY APPLIED THE DISCOVERY STATUTE IN EFFECT AT THE TIME THE ORDER TO TURN OVER THE ROSARIO MATERIAL ONE WEEK BEFORE TRIAL WAS MADE, FINDING THE ORDER PROPER; THE CONCURRENCE AGREED BUT ARGUED THE COURT SHOULD EXPLICITLY RULE THAT THE DISCOVERY STATUTE ENACTED IN 2019 SHOULD ALWAYS BE APPLIED PROSPECTIVELY (FOURTH DEPT).
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