FREE v. NASSAU QUEENS MEDICAL GROUP

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

Naomi FREE, Respondent, v. NASSAU QUEENS MEDICAL GROUP, P.C., et al., Appellants, et al., Defendant.

Decided: September 29, 1997

Before MILLER, J.P., and FLORIO, McGINITY and LUCIANO, JJ. Thomas V. Deffina (Kenneth Mauro, Timothy R. Capowski, Great Neck, of counsel), for appellants. Shandell, Blitz, Blitz, Glass & Bookson LLP, New York City (Alexander J. Wulwick, of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the defendants Nassau Queens Medical Group, P.C., and Dusan Kalicanin appeal from a judgment of the Supreme Court, Queens County (Leviss, J.H.O.), dated June 25, 1996, which, upon a jury verdict awarding damages in the amount of $500,000 for past pain and suffering, $119,000 for past lost earnings, $200,000 for future pain and suffering, and $100,000 for future lost earnings, is in favor of the plaintiff and against them.

ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by deleting the first, second, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth decretal paragraphs thereof and substituting therefor a provision granting a new trial on the issue of damages only, except as to damages for future pain and suffering;  as so modified, the judgment is affirmed, with costs to the appellants, unless within 20 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the verdict as to damages for (a) past pain and suffering from the principal sum of $500,000 to the principal sum of $300,000, (b) past lost earnings from the principal sum of $119,000 to the principal sum of $114,750, and (c) future lost earnings from the principal sum of $100,000 to the principal sum of $73,100, and to the entry of an amended judgment accordingly;  in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

 The plaintiff underwent surgical amputation of her left leg below the knee, due to the defendant internist's malpractice in treating a diabetic foot ulcer.   Upon consideration of all of the evidence adduced at trial, including the proof establishing that the plaintiff did not experience conscious pain and suffering during the amputation, and the very specific and limited evidence of the plaintiff's past and future lost earnings, the award of $500,000 for past pain and suffering, $119,000 for past lost earnings and $100,000 for future lost earnings deviates materially from what would be reasonable compensation (see, CPLR 5501[c] ).  An award of $300,000 for past pain and suffering, $114,750 for past lost earnings and $73,100 for future lost earnings would constitute reasonable compensation (cf., Chung v. New York City Tr. Auth., 213 A.D.2d 619, 624 N.Y.S.2d 224).

We have reviewed the appellants' remaining contentions and find them to be without merit.

MEMORANDUM BY THE COURT.

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