PLEETER v. New York University Medical Center, et al., Defendants.

Reset A A Font size: Print

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

Todd PLEETER, et al., Plaintiffs–Appellants, v. William COLE, M.D., et al., Defendants–Respondents, New York University Medical Center, et al., Defendants.

Decided: October 18, 2011

MAZZARELLI, J.P., MOSKOWITZ, ACOSTA, RENWICK, DeGRASSE, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellants. Gordon & Silber, P.C., New York (Laura E. Rodgers of counsel), for respondents.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered March 17, 2010, dismissing the complaint after jury trial, and bringing up for review an order, same court and Justice, entered January 12, 2010, which denied plaintiffs' post-trial motion to set aside the verdict, unanimously affirmed, without costs.

On June 24, 2006, Todd Pleeter suffered a blood clot to his eye, for which he was treated at New York University Medical Center.   As reported to Dr. William Cole in the hospital, plaintiff's medical history included an episode of atrial fibrillation in 2002, after which he underwent mitral valve prolapse repair, with no subsequent episodes of atrial fibrillation or palpitations.   The hospital records also contain an entry from Dr. Cole stating that plaintiff reported having not taken aspirin until June 26.   Based upon the foregoing and the results of tests performed at the hospital, Dr. Cole determined that plaintiff had suffered from a platelet embolus or clot to the eye and prescribed him an antiplatelet medication upon discharge.

 We perceive no basis to disturb the jury's crediting of the testimony of Dr. Cole and his expert cardiologist over that of plaintiffs' experts with regard to the propriety of Dr. Cole's failure to prescribe Coumadin, an anticoagulant (see Torricelli v. Pisacano, 9 A.D.3d 291, 780 N.Y.S.2d 137 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004] ).

 The trial court did not commit reversible error in allowing into evidence the medical records of Dr. Kenneth Hymes, a hematologist, whose response to a subpoena duces tecum was accompanied by an unsworn letter bearing his signature and purporting to be a certification of the records.   The admission of these records, which post-dated the alleged act of malpractice, was not prejudicial to plaintiffs, was cumulative and was at most harmless error.

We have considered appellants' remaining arguments and find them unavailing.