GENCO v. MILLARD FILLMORE SUBURBAN HOSPITAL

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Supreme Court, Appellate Division, Fourth Department, New York.

Melinda C. GENCO, Plaintiff-Respondent, v. MILLARD FILLMORE SUBURBAN HOSPITAL, Defendant-Appellant, et al., Defendant.  (Appeal No. 2.)

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., GREEN, HAYES, KEHOE and LAWTON, JJ. Michael J. Willett, Buffalo, for Defendant-Appellant. Thomas H. Burton, Buffalo, for Plaintiff-Respondent.

Plaintiff commenced this medical malpractice action against defendant Millard Fillmore Suburban Hospital (Hospital) and defendant doctor to recover damages arising from the discovery of a laparotomy pad in her abdominal cavity approximately 11 months after she had surgery at the Hospital to remove an ovarian mass.   The jury found that the Hospital was negligent, apportioned the Hospital's liability at 90%, and awarded plaintiff damages in the amount of $225,000 for past pain and suffering.

 There is no merit to the Hospital's contention that, during colloquies with counsel for the Hospital that took place in the presence of the jury, the Trial Justice expressed his personal opinions with respect to the responsibility of the Hospital for the presence of the laparotomy pad in plaintiff's abdomen and thus deprived the Hospital of a fair trial.   The comments in question were made in response to improper attempts by counsel for the Hospital to introduce evidence concerning defenses that had not been pleaded by the Hospital.   Upon our review of the record, we conclude that the comments pertained to evidence in the record and were not so egregious or prejudicial that they deprived the Hospital of a fair trial (cf., Habenicht v. R.K.O. Theatres, 23 A.D.2d 378, 260 N.Y.S.2d 890;  Salzano v. City of New York, 22 A.D.2d 656, 253 N.Y.S.2d 138).   In addition, the Trial Justice's references to the doctrine of res ipsa loquitur did not deprive the Hospital of a fair trial (cf., Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456).   In any event, Supreme Court's prompt curative instruction was sufficient to alleviate any prejudice that may have resulted from those references (see, Mena v. New York City Tr. Auth., 238 A.D.2d 159, 160, 656 N.Y.S.2d 206).

 We further conclude that the award of damages for past pain and suffering does not deviate materially from what would be reasonable compensation (see, CPLR 5501[c] ).

Order and judgment unanimously affirmed with costs.

MEMORANDUM: