[*1]
Buffolino v Lieberman
2011 NY Slip Op 50068(U) [30 Misc 3d 1215(A)]
Decided on January 20, 2011
Supreme Court, Suffolk County
Mayer, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 20, 2011
Supreme Court, Suffolk County


Angela Buffolino, as Executor of the Estate of FRANK ANTONACCI, Deceased, Plaintiff,

against

Elliot Lieberman, M.D., NORTH SHORE UROLOGICAL CONSULTANTS P.C., FRANK M. ESEMPLARE, M.D. and SANTO J. FIUMANO, M.D., Defendants.




24817-2005



Pegalis & Erickson, LLP

Attorneys for Plaintiff

1 Hollow Lane

Lake Success, New York 11042

Chesney & Murphy, LLP

Attorneys for Defts Esemplare & Fiumano

2305 Grand Avenue

Jericho, New York 11753-1681

Peter H. Mayer, J.



Plaintiff brings this application to renew and reargue certain oral post trial motions pursuant to CPLR § 4404. Upon granting reargument, the plaintiff seeks an order pursuant to CPLR § 4404(a) setting aside the verdict as a matter of law and directing judgment in favor of plaintiff (judgment Nov) or in the alternative, setting aside the verdict as contrary to the weight of the credible evidence, and setting the matter for a new trial.

The trial of this action commenced on May 21, 2009 and ended on June 1, 2009 when the jury rendered its verdict. The jury, by its verdict, found that the defendant, Frank M. Esemplare, [*2]M.D., did not depart from good and accepted medical practice in his care and treatment of Frank Antonacci. However, the jury did find that the defendant, Santo Fiumano, M.D. did depart from good and accepted medical practice in his care and treatment of Frank Antonacci but that such departure was not the proximate cause of his subsequent pain, suffering and death. By agreement, the verdict in favor of Dr. Esemplare is not the subject of this motion.

The evidence reveals the following facts. On December 14, 2001, plaintiff's deceased, Frank Antonacci met with the defendant, Dr. Santo Fiumano, his primary care physician. At the time of this visit, Mr. Antonacci was in his seventies, a smoker, who complained of voiding problems. A urinalysis revealed the presence of 50 red blood cells per high powered field in his urine. This was characterized as a moderate amount. He was a patient who had previous diagnoses of prostatitis and prostatic enlargement as revealed by his chart. Notably, the urinalysis also revealed an e-coli infection. Based upon the clinical history, physical examination and urinalysis, Dr. Fiumano diagnosed an infection, caused by the e-coli bacteria and prescribed an antibiotic. The defendant did not tell his patient that blood was found in the urine. His medical history revealed no instances of blood in the urine, notwithstanding prior genitourinary problems. On December 17, 2001, the plaintiff met with Dr. Haberman, a urologist and partner of Dr. Lieberman, the plaintiff's urologist whose testimony was placed in the trial record by way of his examination before trial. An additional urinalysis was obtained on December 17, 2001 which revealed no evidence of red blood cells. Both Dr. Haberman and Dr. Lieberman were never made aware of the findings on the first urinalysis of December 14, 2001.

The plaintiff saw Dr. Fiumano again in February 2002, May 3, 2002, May 24, 2002, August 5, 2002, September 9, 2002 and January 31, 2003. Additional urinalysis was done in the office of Dr. Lieberman on January 28, 2002, April 10, 2002, May 8, 2002, June 26, 2002 which did not contain evidence of red blood cells in the urine.

The plaintiff's theory as testified to by the expert was that the defendant departed from the standard of care by failing to further evaluate or "work up" the findings of 50 red blood cells per high powered field (microhematuria) on all the aforementioned dates, in order to rule out the possible presence of a tumor.

The plaintiff's oncology expert testified that all these departures, with the exception of January 31, 2003 proximately caused the plaintiff's injuries as the bladder cancer was present on December 14, 2001 and thereafter, was at a stage on each of those dates that allowed the cancer to be cured. The plaintiff was diagnosed in early June 2003 with stage 4 bladder cancer. He died on January 13, 2004.

The request for relief solely relates to the verdict concerning the defendant Santo J. Fiumano, M.D. As to this defendant, the jury found that although he departed from good and accepted medical practice in his care and treatment of the deceased plaintiff, they also found that such departure was not a substantial factor contributing to the pain, suffering and subsequent death of plaintiff's deceased. [*3]

Specifically, the jury was asked the following questions:

"1)Did the defendant, Santo J. Fiumano, M.D., depart from good and accepted medical practice in his care and treatment of Frank Antonacci?

2)Was that departure a substantial factor in contributing to the pain and suffering and/or death of Frank Antonacci?"

The jury answered "Yes" to the first question and "No" to the second question. The verdict was unanimous.

Both parties approved the verdict sheet as written.

At the delivery of the verdict, plaintiff's counsel made an oral application that this verdict was inconsistent and against the weight of the evidence and requested that the jury be sent back to consider damages. The Court accepted the verdict and disbanded the jury but allowed counsel to secure an extension of time to file a motion seeking relief under CPLR § 4404(a).

To the extent that plaintiff's counsel has styled this motion as one for reargument under CPLR § 2221 of the Court's denial of the application to remand the jury for an assessment of damages, such motion is granted and the Court will consider the relief requested under CPLR § 4404(a).

Dr. Bell, plaintiff's expert testified that the defendant Dr. Fiumano departed from good and accepted medical practices by failing to further evaluate the cause of the plaintiff's microhematuria and said departures occurred on December 14, 2001, February 2002, May 3, 2002, May 24, 2002, August 5, 2002, September 9, 2002 and January 31, 2003. Dr. Hirschman, plaintiff's oncologist, testified that each of these departures with the exception of January 31, 2003 was a proximate cause of the plaintiff's injury, as the cancer was present, diagnosable, at an earlier stage and, therefore, curable.

In support of this application, plaintiff argues that defendant did not proffer any testimony from any qualified oncology expert during trial. Thus, the trial record contains no oncological opinion testimony that controverts the plaintiff's hematology-oncology expert, Dr. Richard Hirschman. Therefore, the only testimony entered into the trial record that concerns bladder cancer, its presence, how it grows, spreads and is staged, and most importantly, that the defendant's departures were a proximate cause of plaintiff's injuries, is from plaintiff's expert. Further, plaintiff argues that the testimony of the defense expert witness, Dr. Vincent Garbitelli, an internal medicine physician, added nothing to the record that impeached or contradicted the testimony of Dr. Hirschman. Dr. Garbitelli, the defense expert, essentially opined that the defendant Dr. Fiumano did not depart from good and accepted standards of medical practice in not "working up" a finding of greater than 50 red blood cells in urinalysis of the plaintiff on December 14, 2001. This expert opinion contradicted the expert opinion of Dr. Bell, an internal medicine specialist, who, as stated above, opined that failing to "work up" or further evaluate the cause of the presence of 50 red blood cells in the urine (microhematuria) as of December 14, 2001, was a departure from good and [*4]accepted medical practice. The defense expert, Dr. Garbitelli, admitted he did not have any expertise in medical oncology.

Thus, it is argued that there was no testimony in the record that could support a finding of no proximate cause as the only testimony on this point came from the plaintiff's expert oncologist.

Defendant concedes that although he did not offer an expert on causation (oncology), there was ample evidence in the trial record for the fact-finders to conclude that the defendant, Dr. Fiumano's departure from good and accepted medical practice was not a substantial factor in the ultimate pain, suffering and death of Frank Antonacci, plaintiff's deceased. In support, defendant submits that the generalized departure question on the verdict sheet precludes the conclusion that the departure was predicated on defendant's failure to order a cytoscopy or further "work up" on December 14, 2001 upon the finding of 50 red blood cells per high powered field in the urine of plaintiff's deceased. He argues the departure could have been based on defendant's failure to send the urinalysis results showing blood in the urine to Dr. Lieberman, the plaintiff's urologist. The defendant also argues that there is evidence in the trial record that Dr. Lieberman, the urologist, would not have ordered a cytoscopy and, indeed, never did order one upon seeing the patient. Notably, Dr. Lieberman was never informed of the findings of microhematuria from the December 14, 2001 urinanalysis, nor was the patient.

The defendant also contends that the plaintiff's oncology expert supports the defendant's position. In support, the defendant refers to the following testimony of Dr. Hirschman:

Q.Well, let me ask it this way then. Doctor, what evidence is there that he had bladder cancer on December 14, 2001?

A.This doesn't have to be yes or no?

Q.It was not a yes or no question, doctor.

THE COURT: I see I made you nervous.

THE WITNESS: Yes.

THE COURT:Doctor, no, the question is what evidence is there? So you know, when you hear a what, who or a how, you can answer the question.

THE WITNESS:So eliminating the fact . . . that we know he had cancer in June of 03?

Q.Yes.

A.Forget about this fact. What evidence do we have that he had cancer then? We have [*5]a clue and that's only a clue. And that clue was that he had dysuria (pain on urination) on that date and he had bleeding on that date. That doesn't give you a diagnosis of cancer but it is a clue; it is a red flag to investigate.

The defendant's internal medicine expert, Dr. Garbitelli then opined that this testimony by Dr. Hirschman is wrong, that microhematuria (microscopic blood in the urine) pointed solely to infection and not to bladder cancer. The trial record also contains evidence, from the defendant and the plaintiff's medical chart that the plaintiff did in fact have an e-coli infection discovered as a result of the urinalysis of December 14, 2001.

The power to set aside a jury verdict and order a new trial is an inherent one, which is codified in CPLR § 4404(a) (see, McCarthy v Port of NY Authority, 21 AD2d 125, 127, 248 NYS2d 713 ; Siegel NY Practice, Sec. 406.) The statute provides that a Court may order a new trial "when the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree."

Whether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination (Nicastro v Park, 113 AD2d 129, 495 NYS2d 184). This question is distinguished from the assessment of whether a jury verdict, as a matter of law, is supported by sufficient evidence (Cohen v Hallmark Cards, 45 NY2d 493, 410 NYS2d 282, accord, Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528, 415 NYS2d 634). To sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury, on the basis of the evidence presented at trial (Cohen v Hallmark Cards, supra). The result of such a determination leads to a directed verdict terminating the action.

The criteria to set aside a jury verdict as against the weight of the evidence is less stringent as such a determination results in a new trial and does not deprive the parties of their right to ultimately have all disputed facts resolved by a jury.

Setting aside a verdict as against the weight of the evidence requires a discretionary balancing of many factors (Cohen v Hallmark Cards, supra at 499). The discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution as a successful litigant is entitled to the benefits of a favorable verdict. Fact finding is, in general, the province of the jury, not the trial court (Nicastro v Park, supra; Ellis v Hoelzel, 57 AD2d 968, 394 NYS2d 91; Curreri v New Town & Country Corp., 60 AD3d 718, 875 NYS2d 207).

Particular deference has traditionally been accorded to jury verdicts in favor of defendants in tort cases because the jury need not necessarily find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof required (Nicastro v Park, supra; Siegel, NY Practice, Sec. 406). [*6]

Thus, it has been stated that a jury verdict in favor of a defendant should not be set aside unless "the jury could not have reached the verdict on any fair interpretation of the evidence" (Tripoli v Tripoli, 83 AD2d 764, aff'd 56 NY2d 684; Cubeta v York International, 30 AD3d 557, 818 NYS2d 136; Dellmonica v Carvel Corp., 1AD3d 311, 766 NYS2d 854).

A similar "fair interpretation" standard came to be applied to jury verdicts returned in favor of plaintiffs (Moffatt v Moffatt, 86 AD2d 864, 447 NYS2d 313, aff'd 62 NY2d 875; O'Boyle v Avis Rent-A-Car-Sys., 78 AD2d 431, 439, 435 NYS2d 296; Yanamoto v Carled Cab Corp., 66 AD3d 603, 888 NYS2d 29). Essentially, the "fair interpretation" standard mandates that the verdict be given great deference unless it appears that, upon review of the trial record, the verdict was not a fair reflection of the evidence presented (Nicastro v Park, supra).

A jury finding that a party was negligent but that the negligence was not a proximate cause of the injury is inconsistent against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause. Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view (Zhagui v Gilbo, 63 AD3d 919, 883 NYS2d 222, see also, Rubin v Pecorano, 141 AD2d 525, 529 NYS2d 142).

In a medical malpractice action, the plaintiff is required to prove that the defendant physician departed from good and accepted practice and that the departure was the proximate cause of the injury or damage. Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause (Bryan v Staten Island University Hospital, 54 AD3d 793, 864 NYS2d 466; Texter v Middletown Dialysis Center Inc., 22 AD3d 831, 803 NYS2d 687).

Unless the alleged act of malpractice falls within the competence of the jury to evaluate, it is incumbent upon the plaintiff to present expert testimony in support of allegations to establish a prima facie case of malpractice (Keane v Sloan Kettering Institute, 96 AD2d 505, 464 NYS2d 548; Richardson, § 7-302; see also, Martinelli v Hessekeil, 132 AD2d 691, 578 NYS2d 169). Thus, in a medical malpractice action, expert testimony is needed to establish any deviation from the standard of practice (Sohn v Sand, 180 AD2d 789, 580 NYS2d 458).

Moreover, the causal connection between an injury and resulting physical condition will usually require expert medical opinion (Richardson, § 7-302[D]).

A thorough analysis of the testimony reveals that the departure testimony given by Dr. Bell, plaintiff's internal medicine specialist, was focused on the failure of Dr. Fiumano to pursue or "work up" the findings of microhematuria found by way of urinalysis on December 14, 2001. Dr. Bell was specific that further evaluation needed to be done in order to rule out cancer, notwithstanding the presence of infection. The test of choice for such "work up" was cytoscopy or cat scan which would have normally been done by a urologist. Further, Dr. Bell testified that the defendant Dr. Fiumano departed in the same fashion, that is, by failing to take the next step to insure there was a proper [*7]follow-up procedure to rule out cancer in February of 2002, when the defendant next saw the plaintiff-deceased, on May 3, 2002 when the plaintiff-deceased had his annual examination on May 24, 2002, August 5, 2002, September 9, 2002 and January 31, 2003.

The plaintiff's expert's contention was that the defendant's obligation to investigate the microhematuria found on December 14, 2001 was triggered on each occasion of the plaintiff's presence in his office.

The defendant argues that it is his belief that the jury concluded that the defendant departed because he failed to fax or tender the urinalysis of December 2001 to Dr. Lieberman, the urologist. The failure to tender the urinalysis to Dr. Lieberman is one factor, among many, under the main departure alleged which was the defendant's failure to take proper steps to insure a proper follow-up investigation to determine the precise cause of the microhematuria. There was no testimony and thus no evidentiary support that the defendant's departure was simply not faxing or tendering the urinalysis to Dr. Lieberman.

Therefore, the subjective belief of defendant's counsel that the departure was simply based on defendant's failure to fax the urinalysis is speculation, just as it would have been had the jury used it as a basis for their finding. The finding of a departure can only be based on the evidence by way of expert opinion given as to this defendant's actions, or non-actions, that violated the standard of care, thus constituting the negligence of the physician.

The defendant further argues that even if Dr. Lieberman had the urinalysis results, he may not have ordered any further testing. The trial record on this point consisted of EBT testimony given by Dr. Lieberman noted below:

Q.Based upon your review of that note, what was your understanding as to what occurred during that visit? (The visit of December 17, 2001)

A.The patient came to the office complaining of an increased problem voiding for one week. He also complained of voiding in small amounts, and complained of what my partner wrote strong urine.

Q.Do you know what your partner meant by strong urine?

A.Not specifically. It sometimes indicates an odor to the urine. I don't know specifically that he meant that or something else.

Q.Did your partner conduct a physical examination?

A.Yes, he did.

Q.And based upon your review of that note, do you have any understanding as to what [*8]the results of that physical examination were?

A.Well, he wrote in his assessment that the patient had prostatitis.

Q.Do you recall discussing with Dr. Haberman the basis of that finding?

A.I don't remember.

Q.Based upon your review of the note did Dr. Haberman refer the patient for any testing or additional procedures?

A.I don't see an indication from him that he ordered any further testing other than what was done in our office.

Dr. Lieberman's testimony was also as follows:

A.. . . Dr. Haberman saw that patient December 17, 2001.

Q.What were the results at that time?

A.Urinalysis was negative. I don't see specifically that a urine culture was done on that date. It would have been our practice to have done so.

Dr. Lieberman further testified as follows:

Q.When the patient presented to you in April of 2002, did he indicate to you whether he had any urinary urgency?

A.Yes.

Q.Did he indicate to you whether he had any burning on urination?

A.He indicated that he had slight dysuria.

Q.At the time you saw him, did you have any opinion as to whether or not those symptoms may have been due to any kind of bladder tumor?

A.Well, when patients present with symptoms such as these, we are aware of a whole range of causes that could be behind this. At that time although I don't recall specifically, it would not have been necessarily a strong suspicion that I had at least at that time on that visit, April 10.

Q.During the April 10 visit, was a bladder tumor something that you were attempting [*9]to rule out for this patient?

A.Well, the patient had no blood in the urine, he had findings entirely consistent with prostatitis. He had a history in our office from 1993 of multiple episodes of chronic and recurrent prostatitis. The physical findings were entirely consistent with a prostatitis on that day.

The Court notes that the testimony of Dr. Lieberman consisted of an interpretation of an office visit of the plaintiff's deceased on December 17, 2001 when he was seen by another urologist, Dr. Haberman. The testimony consisted of a reading, and to some extent, an interpretation of the office chart. Notwithstanding Dr. Haberman's finding of prostatitis (a finding Dr. Fiumano did not make on December 14, 2001), Dr. Lieberman had no recollection of speaking to him about the case. He also noted that although it would have been standard practice to order a urine culture, it was not noted in the chart. Finally, when Dr. Lieberman saw the patient in April of 2002, the patient complained of a slight burning on urination, known as dysuria. He was asked whether the symptoms may have been due to any kind of bladder tumor. The answers given were not responsive to the questions.

Indeed, he couldn't recall the appointment in April of 2002, and simply opined that a bladder tumor would not have "been necessarily of a strong suspicion." He never directly responded to the question as to whether, in April 2002, he was attempting to rule out a bladder cancer.

It is noteworthy that this testimony is coming from someone who was never told of the microhematuria found on December 14, 2001. Equally important is the fact that the patient wasn't told.

There is nothing in this testimony from which it can be concluded that Dr. Lieberman would not have performed a cytoscopy or cat scan had he known the results of the December 14, 2001 urinalysis. Accordingly, inferring that Dr. Lieberman would not have performed any additional tests based on the evidence in this trial record would amount to speculation.

The defendant also points to cross-examination of plaintiff's expert oncologist, Dr. Hirschman, concerning the fact that there was no evidence of cancer on December 14, 2001 other than the microhematuria which was "a clue" which needed to be evaluated or "worked up." The clue is not the diagnosis. The clue is a piece of information that, hopefully, if properly evaluated, leads to diagnosis. Dr. Hirschman also testified on cross examination that the bladder cancer was present and treatable on December 14, 2001. He testified that the possibility that the plaintiff's deceased did not have bladder cancer on December 14, 2001 was "close to zero."

Dr. Bell also gave testimony, without objection, that had these work ups been done at any of the times where departures occurred up until January 31, 2003, the cancer would have been [*10]diagnosed.[FN1]

There is no question that deprivation of a substantial chance for a cure can constitute proximate cause (Gagliardo v Jamaica Hospital, 288 AD2d 179, 732 NYS2d 353). The extent of diminution of a chance for a cure need not be quantified by the expert as long as there is some proof that the chance of survival has been diminished (Borawski v Haung, 34 AD3d 409, 824 NYS2d 362; Jump v Facelle, 275 AD2d 345, 712 NYS2d 162).

There is no dispute that the defendant did not offer any oncological testimony from an expert in an effort to refute the plaintiff's expert opinion as to causation, timing and presence of bladder cancer in the plaintiff's deceased.

There is no doubt that the trial was sharply contested on the issue of liability. The litigation focused on whether the defendant departed from the good and accepted medical practice by failing to order other evaluation after a finding on urinalysis on December 14, 2001 of 50 red blood cells per high powered field in the urine on a patient with a history of urinary tract problems. The defendant presented Dr. Garbitelli, an internal medicine specialist to opine that failure to order cytoscopy or cat scan on this particular patient on December 14, 2001, February 2002, May 3, 2002, May 24, 2002, August 5, 2002, September 9, 2002 and January 31, 2003 was not a departure in direct contrast to plaintiff's expert in internal medicine, Dr. Bell who testified that such a failure to act constituted a departure. The jury concluded this question in favor of the plaintiff.

There is, however, evidence that subsequent urinalysis throughout 2002 revealed no gross or microhematuria. The plaintiff's expert in oncology opined that this is not a fact from which one can rule out cancer as bleeding can be intermittent. Although the defendant argued that this lack of bleeding was not consistent with the presence of cancer, and although there was no defense expert on this point, defendant's argument was based on the undisputed fact that no further red blood cells were observed on a number of urinalysis' throughout 2002 and 2003 until the observation of gross hematuria on May 28, 2003.

Thus, a factual issue, albeit one that weighed in favor of plaintiff, was contained in the trial record.

The fact there is some slight evidence that creates a factual issue does not deprive the Judge of the power to intervene in the appropriate case (Lion v St. John's Queens Hospital, 86 AD2d 863, 447 NYS2d 315; Nicastro v Park, supra). Rationality is the touchstone for legal sufficiency, while fair interpretation is the criteria for weight of the evidence (O'Boyle v Avis Rent a Car, supra).

As stated, the power to set aside a verdict is an inherent one, which is codified in CPLR § 4404(a). Fair interpretation of the evidence must be utilized as a standard in conjunction with the [*11]respect to be accorded the jury verdict. This means that although the scales tilt in favor of the verdict's survival, it leaves the Court with a breadth of discretion which varies with the facts in each case (Nicastro v Park, supra)

Discretion is broadest when it appears that the unsuccessful litigant's evidentiary position clearly outweighed that of the victor. At this point, the question is whether the result the jury reached is so contrary to the conclusion that might fairly have been reached on the basis of the evidence that the Court should exercise its power to overturn the jury's determination (Nicastro v Park, supra).

Balancing all the factors in the present litigation, including but not limited to the lack of defense expert testimony on the oncological issues, the specific nature of the departure testimony, and the significant possibility of jury speculation and inadmissable inferences on the question of proximate cause, the fact that the jury found the defendant to be negligent, the Court hereby concludes that the jury could not have concluded that the defendant's negligence was not a substantial factor in the subsequent pain, suffering and death of Frank Antonacci on any fair interpretation of the evidence. Accordingly, the Court hereby sets aside the verdict.

The Clerk is directed to remit the matter to the Calendar Control Part for purposes of setting a trial date.

This constitutes the Decision and Order of the Court.

Dated: January 20, 2011______________________

PETER H. MAYER, J.S.C.

Footnotes


Footnote 1: In colloquy before the Court, Dr. Garbitelli stated that he could not opine one way or the other as it was possible bladder cancer was present and diagnosable on December 14, 2001.