KULYNSKA v. AGAYEVA (2020)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Debra Silber, J.), entered September 18, 2017.  The judgment, insofar as appealed from, upon a jury verdict, and upon an order of the same court dated August 3, 2017, denying the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury's verdict, is in favor of the defendants Kamila Agayeva and Advanced OB–GYN and against the plaintiff dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

During her pregnancy, the plaintiff received prenatal care from the defendants Kamila Agayeva and Advanced OB–GYN (hereinafter together the defendants).  At 20 weeks, the plaintiff underwent an ultrasound which revealed, among other things, that she had a low-lying placenta.  About a month after the first ultrasound, the plaintiff underwent a second ultrasound, the report of which did not state that the plaintiff had a low-lying placenta.  During the two months following the second ultrasound, the plaintiff's pregnancy progressed normally.  However, on February 15, 2008, the plaintiff experienced unexpected bleeding and went to a hospital where she underwent an emergency caesarian section.  The baby was born in distress and had to be resuscitated.  Despite being placed in intensive neonatal care, the baby died four hours after birth.

At trial, the plaintiff's expert opined that, given the results of the first two ultrasounds, the defendants should have directed the plaintiff to undergo a “color doppler ultrasound.”  According to the plaintiff's expert, this procedure would have identified possible complications affecting the pregnancy, including one identified in the pathology report, velamentous insertion of the umbilical cord.  The defendants' expert contested this assertion on the basis that a low lying placenta, in 95% of cases, resolves on its own, and in the absence of other clinical symptoms, it was unnecessary to undergo further diagnostic testing.

The jury reached a verdict in favor of the defendants, the plaintiff's motion to set aside that jury verdict was denied, and judgment was entered in favor of the defendants.  The plaintiff appeals.

The sole issue raised on this appeal is that defense counsel made two inflammatory remarks on summation which disparaged the plaintiff's expert.  However, the plaintiff's counsel did not timely object to the remarks, or request curative instructions at the time the remarks were made (see Gomez v. Cabatic, 159 A.D.3d 62, 79, 70 N.Y.S.3d 19;  Reilly v. St. Charles Hosp. & Rehabilitation Ctr., 143 A.D.3d 692, 694, 40 N.Y.S.3d 118).  Moreover, counsel is afforded wide latitude in summation to characterize and comment on the evidence (see Acosta v. City of New York, 153 A.D.3d 765, 767, 61 N.Y.S.3d 559;  Frederic v. City of New York, 117 A.D.3d 899, 900, 985 N.Y.S.2d 914).  The subject remarks, which were criticisms of inconsistencies in the testimony of the plaintiff's expert, were fair comment on the evidence, were isolated, and were not so prejudicial as to deprive the plaintiff of a fair trial (see Kleiber v. Fichtel, 172 A.D.3d 1048, 1052, 101 N.Y.S.3d 354).

Accordingly, we affirm the judgment insofar as appealed from.

RIVERA, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.