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Craig WASSERBERG, as Administrator of the Estate of Nathan Wasserberg, Deceased, and Craig Wasserberg, Individually, Plaintiff, v. MENORAH CENTER FOR REHABILITATION AND NURSING CARE, Defendant.
In this medical malpractice action, plaintiff Craig Wasserberg moves to set aside the jury's award as inadequate and for a collateral source hearing after the jury awarded him $300,000.00 for the conscious pain and suffering experienced by his father, decedent Nathan Wasserberg (decedent). Defendant cross-moves to dismiss plaintiff's complaint. After due deliberation and consideration, plaintiff's motion is granted in part and denied in part. Defendant's cross-motion is denied in its entirety.
At trial, plaintiff testified that the decedent was admitted to defendant Menorah Center for Rehabilitation and Nursing Care (Menorah) for rehabilitation on April 2, 2014, after a two-month stay at Beth Israel Hospital due to diabetes that led to the amputation of the decedent's left big toe, sepsis and other conditions. Decedent was unable to walk or use his arms. He mumbled to communicate and could not consume any food or drink orally. He was NPO, meaning “no food by mouth.”
On April 10, 2014, plaintiff visited his father, noting that decedent looked tired and kept falling asleep. Upon his departure, he alerted Menorah's staff that decedent was sitting near the nurse's desk. While en route to work, he received a call to return to Menorah because decedent was not breathing. Medical records indicated that decedent had something lodged in his airway.
The physicians and staff at Menorah initiated a “code” to resuscitate decedent. Dr. Jeffrey Feldman, an internist at Menorah and the physician assigned to decedent, testified that a “code” in a nursing home requires providing basic life support. The protocol included, first, checking the airway, but not for NPO patients, second, chest compressions and, third, respiration with an ambu-bag. Dr. Feldman admitted that there were no specific recommendations for NPO patients.
Thereafter, EMS responded and retrieved a “piece of meat” from decedent's airway. Decedent was admitted to Coney Island Hospital, where he subsequently died on April 30, 2014. Plaintiff testified that during decedent's stay at Coney Island Hospital he would grimace, mumble, and communicate with hand taps.
Both parties presented expert testimony at trial regarding decedent's conscious awareness. Plaintiff's expert, Dr. Ahmad Masood, indicated that upon admission to Coney Island Hospital decedent was placed on a ventilator and his brain was severely affected by the lack of oxygen due to the asphyxiation. However, decedent was responsive to pain stimuli.
Defendant's expert, Dr. Alan Segal, testified that decedent did not experience pain and suffering because he was not actually conscious. His EEG test indicated that his brain was very slow. Additionally, his Glasgow Coma Scale readings denoted a coma.
The jury returned a verdict in favor of plaintiff, finding that Menorah failed to check decedent's airway and that failure was a departure from good and accepted medical practice. It awarded plaintiff $300,000.00 for conscious pain and suffering. Plaintiff now moves, pursuant to CPLR § 4404, to set aside the verdict as inadequate and defendant cross-moves to dismiss pursuant to CPLR § 4401.
Plaintiff argued that the jury's award should be set aside as contrary to the weight of the evidence because it was inadequate compared to other similar cases. In support of his argument, plaintiff proffered the decedent's medical records, his expert's testimony and his own testimony. Specifically,
• Decedent's secondary diagnosis upon admission to Coney Island Hospital was asphyxiation and strangulation;
• Decedent grimaced, and his mumbling worsened after admission, but he was able to tap plaintiff's hand to communicate;
• Dr. Masood indicated that upon admission decedent was placed on a ventilator and his brain was severely affected by the lack of oxygen due to the asphyxiation. Decedent was responsive to pain stimuli. Decedent received pain medication to comfort him during the end of life phase;
• According to the hospital's records, decedent had a level of awareness and was able to experience pain for at least eleven days. The nurses' notes documented the decedent's responses to pain, and purposeful movements.
Plaintiff also requested a date for the collateral source hearing regarding decedent's medical expenses.
Defendant opposed plaintiff's motion, countering with Dr. Segal's testimony that decedent did not experience pain and suffering because he was not actually conscious. Decedent's EEG test results indicated that his brain function was very slow, which is only seen in patients that are poorly responsive or in a coma. Moreover, his Glasgow Coma Scale readings were below 8, and mostly 4, which connotes a coma. According to Dr. Segal, considering decedent's many ailments, his EEG findings and his CT scan results, which revealed atrophy of his brain, the only determination is that decedent was in a coma and could not experience pain and suffering.
Regarding decedent's responses and the nurses notes that indicated same, Dr. Segal explained that decedent's responses were all reflexive responses to pain felt in the brain stem and not at any conscious level. He opined, contrary to plaintiff's testimony, that decedent was unable to make any sounds due to the installation of the ventilator. Moreover, he was not able to move or tap because he was “extremely, extremely weak,” but perhaps there were primitive reflexes of hand closing, and pain medications were administered as a precaution only upon the ventilator's removal.
Defendant's Cross Motion
Defendant cross-moved to dismiss plaintiff's action, contending that since Dr. Feldman could not recall whether he checked decedent's airway during the code then a departure from good and accepted medical practice was not established. In addition, defendant contended that plaintiff failed to proffer the testimony of any other Menorah employee to establish a departure from good and accepted medical practice.
In opposition, plaintiff asserted that the jury could reasonably infer that Dr. Feldman departed from the standard of care because Dr. Feldman testified that if he checked decedent's airway he would have documented same. Dr. Feldman's notes were devoid of any reference to checking decedent's airway. Hence, based upon all the evidence, the jury rationally concluded that Menorah departed from good and accepted medical practice.
CPLR § 4404 authorizes setting aside a jury verdict and ordering a new trial on the basis that the verdict is contrary to the weight of the evidence. Killon v. Parrotta, 28 NY3d 101, 42 N.Y.S.3d 70 (2016). This discretionary power resting with the Court must be exercised with extreme caution because great deference is owed to a jury's verdict. Fruendt v. Waters, ––– N.Y.S.3d ––––, 2018 NY Slip Op. 05666 (2d Dept. 2018); Miller v. Steinberg, ––– N.Y.S.3d ––––, 2018 NY Slip Op. 05585 (2d Dept. 2018); Hollingsworth v. Mercy Medical Center, 161 AD3d 831, 76 N.Y.S.3d 605 (2d Dept. 2018) (damages should not deviate materially from what would be reasonable compensation).
CPLR § 4401 entitles the movant to judgment as a matter of law because there are no issues of fact for a jury's determination. Unlike a motion pursuant to § 4404, there is no weighing of the evidence. Pieter v. Polin, 148 AD3d 1193, 50 N.Y.S.3d 509 (2d Dept. 2017) (a party must demonstrate that there is no rational basis for a jury to find otherwise).
Applying the foregoing law to the instant matter, this Court finds that the jury weighed the totality of the testimony and rendered a fair verdict based upon all the evidence. As posited by defendant, the jury could have determined that decedent's health was severely compromised at the time he choked. Thus, he experienced minimal pain and, thereafter, was in a coma and did not experience conscious pain and suffering as testified to by defendant's expert. Hollingsworth, 161 AD3d at 832.
The analysis could end, but the Court will address plaintiff's argument pursuant to CPLR § 5501(c). The statute allows a jury's award to be set aside if the award is inadequate in that it deviates materially from what would be reasonable compensation. The cases cited by plaintiff in support of this contention were not persuasive as this Court must be guided by verdicts from factually similar cases. The Second Department cases cited by plaintiff were distinguishable, establishing that the plaintiffs therein were able to experience some level of pain, which those juries determined to be significant. Hyung Kee Lee v. New York Hospital Queens, 118 AD3d 750, 987 N.Y.S.2d 436 (2d Dept. 2014) (decedent's complaints, his wife's testimony and the testimony of the medical experts established decedent's conscious pain and suffering); Twersky v. Busche, 37 AD3d 704, 830 N.Y.S.2d 725 (2d Dept. 2007) (witnesses to the accident as well as expert testimony proved that decedent experienced conscious pain and suffering); Weldon v. Beal, 272 AD2d 321, 707 N.Y.S.2d 875 (2d Dept. 2000); Fasolas v. Bobcat of NY, Inc., 150 AD3d 147, 53 N.Y.S.3d 61 (2d Dept. 2017). Furthermore, both Rivera v. City of New York, 80 AD3d 595, 915 N.Y.S.2d 281 (2d Dept. 2011) and McAndrews v. City of New York,299 AD2d 462, 749 N.Y.S.2d 896 (2d Dept. 2002) failed to provide this Court with one scintilla of evidence concerning their facts. Thus, those cases did not provide any guidance.
As the Hollingsworth Court held, a jury is entitled to accept one expert's opinion and reject the opinion of another expert. Id. Clearly, that is what the jury did in this instance. Based upon all the evidence the jury could certainly determine that decedent's suffering did not warrant an award of $3.75 million. This Court will not disturb the jury's determination.
At trial, the parties stipulated pursuant to CPLR § 4545 that a collateral source hearing regarding decedent's medical expenses would be scheduled after the verdict. Defendant did not oppose plaintiff's request for a hearing. Thus, that part of plaintiff's motion that seeks a collateral source hearing is granted.
Defendant's Cross Motion
Again, considering all the evidence, including the conflicting opinions rendered by the parties' experts, the jury could reasonably conclude that none of Menorah's staff checked decedent's airway. Dr. Feldman's testimony and his note regarding the code supported plaintiff's claim that he departed from the standard of care. Indeed, Dr. Feldman testified that all staff, including other physicians responded to the code on April 10, 2014, clearly the jury could reasonably infer that no one checked decedent's airway. Thus, negating any hope of a successful motion, pursuant to CPLR § 4401.
It has long been held that circumstantial evidence supports a jury's verdict in a medical malpractice action. Vialva v. City of New York, 118 AD2d 701, 499 N.Y.S.2d 977 (2d Dept. 1986) (plaintiff establishes a prima facie case upon offering sufficient evidence for the jury to conclude that it is more probable than not that defendant caused the injury). The jury herein was well within its province in deciding, based upon all the direct and circumstantial evidence, that Menorah's failure caused decedent's injury, and they awarded a verdict in accordance with the evidence of his pain and suffering. Bert v. Meyer, 243 AD2d 522, 663 N.Y.S.2d 99 (2d Dept. 1997) (a jury's conclusion is sufficient if it is based upon a valid line of reasoning deduced from the evidence); Ledogar v. Giordano, 122 AD2d 834, 505 N.Y.S.2d 899 (2d Dept. 1986). See also Schneider v. Kings Highway Hospital Center, 67 NY2d 743, 500 N.Y.S.2d 95 (1986) (“․we have on numerous occasions upheld or reinstated a jury's verdict where the logic of common experience itself, as applied to the circumstances shown by the evidence, led to the conclusion that defendant's negligence was the cause of plaintiff's injury.”).
Accordingly, plaintiff's motion is granted to the extent that a collateral source hearing shall be held on November 1, 2018, at 9:30 a.m. Defendant's cross-motion is denied in its entirety.
This constitutes the Decision and Order of this Court.
Genine D. Edwards, J.
Response sent, thank you
Docket No: 13851/2014
Decided: October 17, 2018
Court: Supreme Court, Kings County, New York.
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