PEEVEY v. UNITY HEALTH SYSTEM (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this medical malpractice action alleging, in relevant part, that defendants were vicariously liable for the purported negligence of a doctor employed at defendants’ hospital during the performance of laparoscopic surgery to treat plaintiff's ruptured ectopic pregnancy. Plaintiff appeals from a judgment entered upon a jury verdict finding that the doctor did not depart from the standard of care. Plaintiff's appeal brings up for review both that part of an order denying her pretrial motion for partial summary judgment on the issue of liability and the order denying her posttrial motion to set aside the verdict (see CPLR 5501 [a] [1], [2]). We affirm.

We reject plaintiff's contention that Supreme Court (Rosenbaum, J.) erred in denying her pretrial motion for partial summary judgment on the issue of liability. Although plaintiff met her initial burden of establishing entitlement to judgment as a matter of law (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Cianfrocco v. St. Luke's Mem. Hosp. Ctr., 265 A.D.2d 849, 850, 695 N.Y.S.2d 789 [4th Dept. 1999]), defendants raised a triable issue of fact whether the doctor departed from the accepted standard of medical care by submitting, inter alia, the affirmation of their expert obstetrician/gynecologist (see Cranker v. Infantino, 229 A.D.2d 908, 908-909, 646 N.Y.S.2d 477 [4th Dept. 1996]). Defendants’ expert opined, in contrast to the opinion of plaintiff's expert, that the vascular injury sustained by plaintiff during the procedure was a known and accepted complication associated with that type of laparoscopic surgery, which could occur in the absence of negligence, and that the doctor's performance of the surgery adhered to the accepted standard of medical care (see Matos v. Schwartz, 104 A.D.3d 650, 651-652, 960 N.Y.S.2d 209 [2d Dept. 2013]). Contrary to plaintiff's contention, we conclude that the opinions of defendants’ expert were not conclusory, unfounded, or speculative (see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]; Wilk v. James, 107 A.D.3d 1480, 1485, 967 N.Y.S.2d 259 [4th Dept. 2013]). Where, as here, the nonmovants’ expert affirmation squarely opposes the affidavit of the moving party's expert, the result is a classic battle of the experts that is properly left to a jury for resolution (see Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018]).

We also reject plaintiff's contention that the court (Piampiano, J.) erred in denying her motion during trial for a directed verdict pursuant to CPLR 4401 and her posttrial motion insofar as it sought judgment notwithstanding the verdict pursuant to CPLR 4404 (a). Initially, we note that plaintiff failed to preserve for our review her contention that the court erred in admitting the expert testimony of defendants’ general surgeon based on the purported lack of evidentiary foundation for that testimony (see generally Horton v. Smith, 51 N.Y.2d 798, 799, 433 N.Y.S.2d 92, 412 N.E.2d 1318 [1980]; Taylor-Gove v. St. Joseph's Hosp. Health Ctr., 242 A.D.2d 879, 880, 662 N.Y.S.2d 675 [4th Dept. 1997], lv denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632 [1998]). Contrary to plaintiff's contention, upon our review of the conflicting factual and expert evidence presented by the parties at trial, we conclude that there was a rational process by which the jury could base a finding in defendants’ favor (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997]; Wolfe v. St. Clare's Hosp. of Schenectady, 57 A.D.3d 1124, 1126, 869 N.Y.S.2d 644 [3d Dept. 2008]), i.e., that the doctor did not depart from the standard of care.

Contrary to plaintiff's further contention, we conclude that the court properly denied her posttrial motion pursuant to CPLR 4404 (a) insofar as it sought to set aside the verdict as against the weight of the evidence. It is well settled that a verdict may be set aside as against the weight of the evidence only if “the evidence so preponderate[d] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence” (Lolik v. Big V Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] [internal quotation marks omitted]), and that is not the case here.

Finally, plaintiff contends that she is entitled to a new trial on the ground that defendants’ attorney improperly argued before the jury during summation a theory regarding how the vascular injury occurred that was unsupported by the record. Plaintiff failed to object to the allegedly improper argument of defendants’ attorney on summation, and thus plaintiff's contention is not preserved for our review (see Dailey v. Keith, 306 A.D.2d 815, 816, 760 N.Y.S.2d 715 [4th Dept. 2003], affd 1 N.Y.3d 586, 774 N.Y.S.2d 105, 806 N.E.2d 130 [2004]). In any event, we conclude that any impropriety by defendants’ attorney during summation was “ ‘not so flagrant or excessive that a new trial is warranted’ ” (Dombrowski v. Moore, 299 A.D.2d 949, 951, 752 N.Y.S.2d 183 [4th Dept. 2002]; see Winiarski v. Harris [Appeal No. 2], 78 A.D.3d 1556, 1558, 910 N.Y.S.2d 814 [4th Dept. 2010]).