ROSENTHAL v. Sperling Prostate Center, et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered October 19, 2022, which, upon a jury verdict in plaintiffs’ favor, denied the motion of defendants Danny S. Sperling, M.D., also known as Danny Sperling, M.D., also known as Dan S. Sperling, M.D., and Sperling Radiology, P.C., to set aside the verdict and enter judgment in their favor or, alternatively, to order a new trial, unanimously affirmed, without costs.

There is no basis to disturb the jury's finding that defendants committed medical malpractice where plaintiffs’ experts unequivocally testified that the laser ablation procedure performed by Dr. Sperling was experimental and contraindicated, that it constituted a deviation from the standard of care, and that it caused plaintiff's injuries.  This testimony provided a sufficient basis for the jury's verdict (see Alvarado v. Miles, 32 A.D.3d 255, 257, 820 N.Y.S.2d 39 [1st Dept. 2006], affd 9 N.Y.3d 902, 843 N.Y.S.2d 532, 875 N.E.2d 24 [2007];  English v. Fischman, 266 A.D.2d 6, 697 N.Y.S.2d 613 [1st Dept. 1999], lv denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000]).

The failure to poll the jury does not require a new trial.  Defendants expressly waived their right to poll the jury when the trial court directly asked the parties whether they wanted the jury to be polled and defendants’ counsel responded that he did not (see Holstein v. Community Gen. Hosp. of Greater Syracuse, 20 N.Y.3d 892, 893, 956 N.Y.S.2d 475, 980 N.E.2d 523 [2012]).  Defendants also waived any claim that the verdict was inconsistent by failing to raise that objection while the jury was still present (see Arrieta v. Shams Waterproofing, Inc., 76 A.D.3d 495, 496, 908 N.Y.S.2d 2 [1st Dept. 2010]).  In any event, nothing in the verdict or the proceedings indicates that the jurors were confused, or that they exhibited any prejudice or bias.

The damage award does not deviate from fair and reasonable compensation (see CPLR 5501[c]).  The jury properly based its award on the testimony by plaintiff and his physician regarding the urological and sexual dysfunction that resulted from the procedure (see Reed v. City of New York, 304 A.D.2d 1, 7, 757 N.Y.S.2d 244 [1st Dept. 2003], lv denied 100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003]).

The trial court providently exercised its discretion in permitting plaintiffs to renew their motion to amend the complaint to assert a claim for punitive damages.  The trial included testimony from defendants’ expert essentially conceding that the procedure was experimental, as well as testimony from defendants’ employees that the doctor directed changes to plaintiff's medical records after it was determined that his biopsy was negative for cancer, and then again after this suit had been filed.  This testimony properly supported the trial court's decision to grant the motion (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014];  Gonfiantini v. Zino, 184 A.D.2d 368, 369, 584 N.Y.S.2d 847 [1st Dept. 1992]).  However, the issue of whether the evidence supports the jury's finding that plaintiffs were entitled to punitive damages is academic, as the trial court, in a prior order, vacated that award and set the claim for a future retrial based on an error in the jury charge.

We have considered defendants’ remaining arguments and find them unavailing.