GRANT WHITE v. HORNBARGER (2004)

Plaintiff commenced this action to recover damages for injuries she sustained when Craig Hornbarger, M.D. (defendant) cut her bile duct and hepatic duct while performing a cholecystectomy.   It is undisputed that defendant mistakenly cut those ducts, intending instead to cut the cystic duct.   The jury returned a verdict finding that defendant was not negligent, and plaintiff moved to set aside the verdict and for a directed verdict on liability.   Supreme Court properly granted that part of plaintiff's motion seeking to set aside the verdict.   The evidence demonstrates that, during surgery, defendant encountered numerous adhesions, severe swelling and inflammation in the surgical area, which distorted plaintiff's anatomy, changed the position of the structures therein, and increased the risk of misidentification of the ducts.   Plaintiff's expert testified that in such circumstances, it is “virtually mandatory” to perform a cholangiogram, a procedure that would have permitted defendant to identify the ducts.   Defendant and his expert agreed that a cholangiogram should be performed when the surgeon is unsure of the patient's anatomy.   Contrary to plaintiff's expert, however, they further testified that defendant's failure to perform a cholangiogram did not constitute a departure from accepted standards of medical practice.   Those conflicting expert opinions did not preclude the court from exercising its discretion to set aside the verdict (see Nicastro v. Park, 113 A.D.2d 129, 138, 495 N.Y.S.2d 184;  see also Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499).  “Where opinion testimony is contradicted by the facts, the facts must prevail” (Matter of Slade, 106 A.D.2d 914, 915, 483 N.Y.S.2d 513;  see Matter of Horton, 272 App.Div. 646, 651, 75 N.Y.S.2d 45, affd. 297 N.Y. 891, 79 N.E.2d 736;  Strasberg v. Equitable Life Assur. Socy. of U.S., 281 App.Div. 9, 13, 117 N.Y.S.2d 236).   Here, the facts so preponderate in plaintiff's favor that the verdict finding that defendant was not negligent could not have been reached on any fair interpretation of the evidence, and the verdict was properly set aside (see Schwartz v. Minkoff, 308 A.D.2d 484, 486, 764 N.Y.S.2d 285;  Agustin v. Beth Israel Hosp., 185 A.D.2d 203, 204, 586 N.Y.S.2d 252).

The court erred, however, in directing judgment on liability in plaintiff's favor (see Schwartz, 308 A.D.2d at 485-486, 764 N.Y.S.2d 285).  “Having set aside the verdict as being against the weight of the evidence on the issue of liability, the trial court should have granted a new trial on that issue” (Harrison v. Harrison, 199 A.D.2d 1091, 1091, 607 N.Y.S.2d 204).   We therefore modify the order by denying that part of plaintiff's motion seeking a directed verdict on liability, and we grant a new trial on that issue.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and as modified the order is affirmed without costs and a new trial is granted.

MEMORANDUM: