WEINSTEIN v. Josyann Abisaab, et al., Defendants.

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

Larry WEINSTEIN, Plaintiff-Respondent, v. NEW YORK HOSPITAL, Defendant-Appellant, Josyann Abisaab, et al., Defendants.

Decided: February 13, 2001

SULLIVAN, P.J., ROSENBERGER, NARDELLI, TOM and LERNER, JJ. Martin S. Rothman, for Plaintiff-Respondent. Daniel S. Ratner, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ira Gammerman, J. and a jury), entered August 17, 1999, awarding plaintiff damages against defendant hospital in the principal amount of $12,076,000, before structuring, including $2 million and $8 million for past and future pain and suffering, respectively, upon his stipulation, in lieu of a new trial on damages, reducing the jury's award of damages in the principal amount of $46,219,000, including $6 million and $25 million for past and future pain and suffering, respectively, unanimously modified, on the law, to vacate the awards of $54,000, $28,000 and $28,000 for past supervision, past schooling and past transportation expenses, respectively, and, on the facts, to vacate the awards for, and to direct a new trial on, past and future pain and suffering and future schooling and transportation expenses, and otherwise affirmed, without costs, unless plaintiff, within 30 days of service of a copy of this order with notice of entry, stipulates to reduce the awards for past pain and suffering to $2,000,000, future pain and suffering to $4,500,000, future schooling to $154,800 and future transportation to $150,500, and to the entry of an amended judgment in accordance therewith.

 The awards for past pecuniary damages is vacated, on the law, since those expenses were paid for by plaintiff's mother, who was not legally obligated to do so and who did not assert a derivative claim (see, Bani-Esraili v. Lerman, 69 N.Y.2d 807, 513 N.Y.S.2d 382, 505 N.E.2d 947).

 According deference to the jury's resolution of conflicting expert testimony (see, Hill v. Liford, 215 A.D.2d 252, 626 N.Y.S.2d 777), a fair interpretation of the evidence supports the findings that defendants were negligent in not repeating arterial blood gas studies between 8:47 P.M. and 10:00 P.M., and in not arranging for intubation after receiving the first such study, and that such negligence was a proximate cause of plaintiff's infirmities.   In particular, the jury could fairly reject defendant's contention that viral encephalitis was the root cause of plaintiff's infirmities when the objective tests performed could not substantiate that diagnosis, and fairly rely on the multiple entries in the medical records indicating that an emergency intubation had been performed due to respiratory arrest in preference to testimony that such notations were incorrect.

 Because defendant failed to object to the now challenged testimony of plaintiff's medical experts in a timely and specific manner, any claim of error with respect to the admissibility of that testimony is not preserved for appellate review (see, Simon v. Indursky, 211 A.D.2d 404, 405, 630 N.Y.S.2d 2).   In any event, the objection that materials relied upon by the experts were never admitted into evidence is unpersuasive, since such materials were used primarily to confirm conclusions that the experts had already reached from their own examinations of plaintiff and the properly admitted hospital records (see, Ferrantello v. St. Charles Hosp. & Rehabilitation Center, 275 A.D.2d 387, 712 N.Y.S.2d 615).

 The awards for pain and suffering deviate materially from what is reasonable compensation under the circumstances (cf., Vasquez v. Figueroa, 262 A.D.2d 179, 180, 694 N.Y.S.2d 6;  Bermeo v. Atakent 241 A.D.2d 235, 240, 671 N.Y.S.2d 727, citing Cruz v. Mt. Sinai Hosp., 191 A.D.2d 325, 594 N.Y.S.2d 776).   The awards for future pecuniary damages are excessive to the extent indicated, in view of the testimony of plaintiff's mother.

In the event plaintiff does not stipulate to the reduction, and opts for a new trial, he should not be allowed to seek lost earnings and other items of claimed pecuniary damages stricken by the trial court for deficiencies in proof (see, Outeiral v. Otis Elev., 220 A.D.2d 255, 632 N.Y.S.2d 73).

We have considered defendant's other arguments and find them unavailing.