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Elizabeth GRANEY, Plaintiff-Appellant, v. Charles J. RYAN, M.D., Janice Ross, M.D., Carol Skrodski, as Executrix of the Estate of Zbig Skrodski, M.D., Deceased, and Auburn Memorial Hospital, Defendants-Respondents.
On appeal from a judgment entered in favor of defendants in this medical malpractice action, plaintiff contends that Supreme Court erred in its evidentiary rulings at trial and in its jury charge. Plaintiff failed to preserve for our review her contention that the court abused its discretion in precluding her from treating defendant Charles J. Ryan, M.D. as a hostile witness during her direct examination of him. In any event, we conclude that any error arising therefrom is harmless because plaintiff had ample opportunity to cross-examine Dr. Ryan when he testified on his own behalf. The court also did not abuse its discretion in refusing to admit in evidence certain photographs offered by plaintiff (cf. Salazar v. B.R. Fries & Assoc., 251 A.D.2d 210, 211, 674 N.Y.S.2d 358). The court allowed plaintiff to introduce other photographs and drawings that aided the jury in its assessment of medical testimony.
Also contrary to plaintiff's contention, the court properly granted Dr. Ryan's request for an error in judgment charge because there was testimony that Dr. Ryan considered and chose between two medically acceptable treatment alternatives after learning that he failed to remove the entire tumor from plaintiff's shoulder (see Shahram v. Horwitz, 5 A.D.3d 1034, 1035, 773 N.Y.S.2d 642; see generally Nestorowich v. Ricotta, 97 N.Y.2d 393, 399, 740 N.Y.S.2d 668, 767 N.E.2d 125). Plaintiff further contends that the court erred in refusing to marshal the evidence. “Although the court should have summarized the parties' factual contentions and legal theories, including plaintiff's various theories of liability ․, plaintiff has demonstrated no prejudice as a result of the court's failure to do so” (Blanchard v. Whitlark, 286 A.D.2d 925, 926, 731 N.Y.S.2d 410; see Radloff v. Adler, 205 A.D.2d 973, 974, 613 N.Y.S.2d 779, lv. dismissed in part and denied in part 84 N.Y.2d 988, 622 N.Y.S.2d 907, 647 N.E.2d 112). Plaintiff also demonstrated no prejudice arising from the court's failure to submit an itemized verdict sheet to the jury (see Blanchard, 286 A.D.2d at 926, 731 N.Y.S.2d 410; Veeder v. Community Health Plan, 281 A.D.2d 756, 758, 722 N.Y.S.2d 106). We have considered plaintiff's remaining contentions with respect to the court's evidentiary rulings and jury charge and conclude that they are without merit.
Finally, we reject plaintiff's contention that the verdict is against the weight of the evidence (see generally McClain v. Lockport Mem. Hosp., 236 A.D.2d 864, 865, 653 N.Y.S.2d 774, lv. denied 89 N.Y.2d 817, 659 N.Y.S.2d 857, 681 N.E.2d 1304). It cannot be said that the evidence so preponderated in favor of plaintiff that the verdict could not be reached upon any fair interpretation of the evidence (see Root v. DiRaddo, 302 A.D.2d 987, 988, 755 N.Y.S.2d 151, lv. denied 100 N.Y.2d 504, 762 N.Y.S.2d 873, 793 N.E.2d 410).
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
MEMORANDUM:
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Decided: June 10, 2005
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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