DAY v. HOSPITAL FOR JOINT DISEASES ORTHOPAEDIC INSTITUTE (2004)

In an action to recover damages for medical malpractice, etc., the defendants appeal from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), entered March 6, 2003, which, upon a jury verdict, and upon an order of the same court dated December 11, 2002, denying their motion, inter alia, to set aside the verdict pursuant to CPLR 4404, and granting the plaintiffs' cross motion for an increase of $50,000 as compensation for past damages pursuant to CPLR 5031(a), is in favor of the plaintiffs and against them in the total sum of $926,142.25.

ORDERED that the judgment is affirmed, with costs.

Contrary to the defendants' contention, the plaintiffs adduced sufficient evidence at trial from which the jury could rationally have concluded that the defendants departed from accepted medical and nursing practice in the administration of an intra-muscular injection (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Foley v. Flushing Hosp. & Med. Ctr., 34 N.Y.2d 863, 864, 359 N.Y.S.2d 113, 316 N.E.2d 579;  King v. McMillan, 8 A.D.3d 447, 778 N.Y.S.2d 290;  McMurray v. Staten Is. Univ. Hosp., 7 A.D.3d 764, 777 N.Y.S.2d 305).   Moreover, it cannot be said that the jury could not have reached its verdict on any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Gerdik v. Van Ess, 5 A.D.3d 726, 774 N.Y.S.2d 174;  Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184).   The disputed testimony of the parties and their medical experts presented issues of credibility to be resolved by the jury, which had the foremost opportunity to observe and assess the witnesses and the evidence (see Gerdik v. Van Ess, supra;  Citron v. Northern Dutchess Hosp., 198 A.D.2d 618, 620, 603 N.Y.S.2d 639;  Widman v. Horwitz, 189 A.D.2d 812, 592 N.Y.S.2d 463;  see also McDonagh v. Victoria's Secret, Inc., 9 A.D.3d 395, 781 N.Y.S.2d 525).

 The award of damages for personal injuries is primarily a question for the jury (see Quackenbush v. Gar-Ben Assoc., 2 A.D.3d 824, 769 N.Y.S.2d 387;  Lamb v. Babies ‘R’ Us, 302 A.D.2d 368, 754 N.Y.S.2d 356;  Balsam v. City of New York, 298 A.D.2d 479, 480, 748 N.Y.S.2d 779;  Stylianou v. Calabrese, 297 A.D.2d 798, 748 N.Y.S.2d 36), whose determination is entitled to great deference (see Quackenbush v. Gar-Ben Assoc., supra;  Lamb v. Babies ‘R’ Us, supra).   Upon our consideration of the nature and extent of the injuries sustained by the plaintiff Kathlyn Day, we find that the awards to her of damages for past and future pain and suffering do not materially deviate from what would be considered reasonable compensation (see CPLR 5501[c];  Quackenbush v. Gar-Ben Assoc., supra;  Jones v. Davis, 307 A.D.2d 494, 495, 497-498, 763 N.Y.S.2d 136;  Cabezas v. City of New York, 303 A.D.2d 307, 756 N.Y.S.2d 566;  Jansen v. Raimondo & Son Constr. Corp., 293 A.D.2d 574, 741 N.Y.S.2d 71;  Summerville v. City of New York, 257 A.D.2d 566, 683 N.Y.S.2d 579;  cf. Valentine v. Lopez, 283 A.D.2d 739, 725 N.Y.S.2d 714).