Brenowitz v North Shore Univ. Hosp.

[*1] Brenowitz v North Shore Univ. Hosp. 2006 NY Slip Op 50088(U) [10 Misc 3d 1076(A)] Decided on January 26, 2006 Supreme Court, Richmond County Vitaliano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2006
Supreme Court, Richmond County

Darrin Brenowitz, as the Administrator of the Estate of BARRY BRENOWITZ and DARRIN BRENOWITZ and JUDIE BRENOWITZ, Individually, Plaintiff(s),

against

North Shore University Hospital, and JOPH STECKEL, Defendant(s).



10090/03

Eric N. Vitaliano, J.

This is an action in which it is claimed that the consequences of medical malpractice took the life of plaintiff's decedent, Barry Brenowitz ("Mr. Brenowitz"). The jury returned a verdict against defendant Joph Steckel ("Dr. Steckel") alone and awarded Darrin Brenowitz, plaintiff administrator of decedent's estate, damages in the amount of $1.5 million to compensate for the conscious pain and suffering endured by Barry Brenowitz in the approximately four month period between his treatment by Dr. Steckel and his death and an additional $20,000 to cover funeral expenses. Without prejudice to motion or appeal, the amount awarded for funeral expenses was reduced by stipulation to $8229, the actual cost of decedent's funeral. Dr. Steckel is now before the Court on this motion pursuant to CPLR 4404(a) seeking post-verdict relief. [*2]

There is no question about what caused the death of Barry Brenowitz. Mr. Brenowitz succumbed to complications of the surgical procedure, a cystoprostatectomy, performed by Dr. Steckel. Neither is there a challenge by plaintiff to the manner in which Dr. Steckel performed the actual surgery. Plaintiff claims, rather, that Dr. Steckel committed malpractice in three different and discreet ways: (1) performing the surgery without ordering or conducting appropriate pre-operative diagnostic tests; (2) failing to explain adequately to decedent nonsurgical diagnostic and treatment alternatives and, thereby, failing to obtain an informed consent for the surgical procedure from decedent, and (3) prematurely discharging decedent from the hospital following surgery. Success on any of the three claims would entitle plaintiff to judgment. The jury found for plaintiff on all three.

Dr. Steckel renews on this motion the defenses rejected by the jury. Recognizing the stern command of case law to preserve and give effect to a jury's verdict, Dr. Steckel argues that the exception to the rule obtains in that the verdict is not legally sufficient because, he contends, there is no valid line of reasoning upon the credible evidence with permissible inferences which could ever lead rational fact finders to the conclusions reached by the jury here. See Keaney v. City of New York, 2005 WL 3485839 (2d Dep't, Dec. 19, 2005); Lallemand v. Cook, 23 App. Div. 3d 533, 2005 WL 3117990 (2d Dep't, Nov. 21, 2005). Indeed, Dr. Steckel argues, not only must the verdict be set aside as against the weight of the credible evidence, but, because any credible evidence supporting the verdict is so thin, that judgment must be granted to him as a matter of law notwithstanding the verdict. Alternatively, should the Court sustain the jury's finding of fault, Dr. Steckel moves to reduce the $1.5 million awarded for the pain and suffering experienced by Barry Brenowitz following the operation until the time of his death on the ground that the amount awarded is shockingly excessive and materially deviates from reasonable compensation.

The motion tests the three distinct claims of malpractice presented to the jury. Two of the claims related to Dr. Steckel's conduct prior to performing the surgical procedure on Mr. Brenowitz and the third related to his discharge from the hospital following surgery. The Court will first jointly consider the malpractice plaintiff claims occurred prior to the surgery.[FN1] Given the blizzard of documentation that accompanies any hospital admission, much less one that involves treatment for cancer and the surgical removal of a major organ, there is virtually no room to controvert the "what"," how" and "when" of such treatment. What is often in issue, and obviously through expert medical testimony, is the "should". Such is the case here. The Court's inquiry on this review is whether, in accordance with good and accepted medical practice, Dr. Steckel should have done what all agree he did do or whether he should have done something else.

Plaintiff called Dr. Leonard Biel to testify at trial. Dr. Biel earned his doctorate in medicine almost 60 years ago and, following residency, maintained and continues to maintain a practice in general urology. He is board certified in urology, has been the chief of urology at [*3]Beth Israel in Manhattan and has taught for many years at the Mount Sinai Medical School. Although his practice is more limited now, Dr. Biel testified that he has removed numerous bladder tumors and has assisted at cystoprostatectomies. In the course of his many years of practice, Dr. Biel has treated patients with bladder cancer, though he does not specialize in it. He is not a urological oncologist nor has he ever assisted at a cystoprostatectomy of the kind performed by Dr. Steckel on Mr. Brenowitz, that is, which included the further procedure of creating an internal neobladder to replace the bladder surgically removed.

Counterpoint to Dr. Biel, Dr. Steckel, who is board certified in urological oncology and who has performed numerous bladder removals and helped pioneer in the New York metropolitan region the surgery performed on decedent, i.e., the total removal of the bladder and its continent replacement with a neobladder constructed from the patient's small intestine and colon, testified in his own defense. Also called to testify for the defense was Dr. Mitchell Benson. Like Dr. Steckel, Dr. Benson is a board certified urologist, who specializes in the field of urological oncology. He is chairman of the urology department at Columbia University School of Medicine. Dr. Benson has also performed numerous cystoprostatectomies and many of those involved the creation of a neobladder. Dr. Benson, of course, confirmed in his testimony that Dr. Steckel did not deviate in any way from good and accepted medical practice in his care of Barry Brenowitz.

In the battle of the medical experts at trial, it is clear without doubt that the experts called by the defense were more highly credentialed and far more experienced in the specific surgical procedure performed on decedent than was Dr. Biel. Any suggestion, however, that Dr. Biel's testimony is insufficient to support a verdict because he is lesser credentialed cannot survive close scrutiny. First, the manner in which the surgery was performed was not even questioned in the lawsuit. What was in issue was the diagnosis and treatment of a patient who presented with a bladder tumor. Although Dr. Biel admitted he did not have a specialty in oncology, his testimony made quite clear that he had treated and continues to treat patients who present with cancerous bladder tumors. More critically, with an admittedly significant rehabilitation necessary on his redirect examination, Dr. Biel testified that he was aware of what good and accepted medical practice required for the diagnosis and treatment of such a condition in the metropolitan New York medical community at or around the time Mr. Brenowitz was treated by Dr. Steckel. Once Dr. Biel established his qualifications as a medical expert regarding the diagnosis and treatment of patients with cancerous bladder tumors, as he did on the basis of his testimony with respect to his own practice and the knowledge he claimed to have of the practice of other colleagues in this field, he was qualified to offer an opinion. This is true even though he does not possess the further skills of Dr. Steckel or offer himself as a specialist in urological oncology. "Any lack of skill or expertise [on Dr. Biel's part] goes to the weight of his...opinion as evidence, not its admissibility." Texter v. Middletown Dialysis Center, Inc., 22 App. Div. 3d 831, 803 NYS2d 687, 689 (2d Dep't 2005). Also left to the jury was the question of whether they believed Dr. Biel's testimony in the tarnished form of cross examination or in the revarnished form of redirect examination.

The crux of the dispute between the two sides ultimately rests on Dr. Biel's assertion that further diagnostic testing was required following the removal of the tumors from decedent's bladder during a surgical procedure at Memorial Sloan Kettering Hospital which included a [*4]subsequent determination on biopsy that the tumors removed were cancerous and that the cancer was muscle invasive. Dr. Steckel and Dr. Benson contended that the diagnosis of muscle invasive bladder cancer at Sloan Kettering required in and of itself the surgical removal of Mr. Brenowitz's bladder. Dr. Biel contended, however, that good and accepted medical practice still required a further biopsy to see whether the initial tumor removal had eliminated all of the cancer before additional and radical surgery was undertaken. Further, Dr. Biel's claim of departure in failing to perform the additional testing had import on the second claimed pre-surgical departure by Dr. Steckel, that is the failure to obtain a properly informed consent from Mr. Brenowitz. To this end, but with no direct bearing on Dr. Steckel's culpability, laboratory testing following removal of the bladder by Dr. Steckel revealed Mr. Brenowitz's bladder, in fact, to be cancer free. This result lent credence to Dr. Biel's argument for further testing because, as both Dr. Steckel and Dr. Benson had to concede anyway, the resection of all tumors can, even with muscle invasive cancer, leave the bladder cancer free.

The sharp difference in the expert opinions offered by plaintiff and defendant was amplified in the dispute over whether Dr. Steckel had obtained from Barry Brenowitz an informed consent for the bladder removal and creation of a neobladder. For Dr. Steckel and Dr. Benson, once muscle invasive bladder cancer had been diagnosed at Sloan Kettering, survival statistics made clear that no further diagnostic testing was necessary nor was there required any discussion with Mr. Brenowitz of the possibility deemed remote that the surgical removal at Sloan Kettering of the bladder tumors had resulted in the removal of all of the cancer cells as well. All that was required, they insisted, and the record revealed Dr. Steckel had done, was to advise Mr. Brenowitz of the need for a cystoprostatectomy and of its risks which were, essentially, the risks of any major surgery. There was no need to discuss further, according to their testimony, whether there should be additional follow up diagnostic testing and, pending such tests, whether there should be surgery at all. Dr. Biel protested that the Sloan Kettering surgical procedure could, as indeed it did, have removed all the cancer cells and, therefore, not only was it a departure to perform the surgery without additional testing but that it was also a departure in that a consent obtained without such information could not be informed.[FN2] In blunt form, Dr. Biel did not agree that going forward with radical surgery without follow-up diagnostic testing to the tests done at Sloan Kettering was an appropriate treatment option about which qualified medical practitioners could differ. Derivatively, he believed, any consent obtained in that posture could not be informed. For Dr. Biel, each of these steps taken by Dr. Steckel was nothing more than a departure from good and accepted practice.

The special status generally accorded to the verdict of a jury applies with full vigor in an action founded on medical malpractice. In considering Dr. Steckel's motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence, the Court must view the [*5]evidence in the light most favorable to plaintiff, as the nonmoving party, and afford plaintiff every favorable inference. Applying that standard, the jury's finding of malpractice must not be disturbed. Clearly, where a plaintiff's medical expert testified that it was a departure from good and accepted medical practice in failing to perform a follow up diagnostic test prior to performing a major surgical procedure and there is, as here, causality between such departure and injury, the jury's finding of negligence may not be set aside. Hanley v. St. Charles Hospital and Rehabilitation Center, 307 App.Div. 2d 274, 277, 763 N.Y.S. 322, 324 (2d Dep't. 2003). Moreover, where "the jury was presented with conflicting and divergent expert opinions, the resolution of [such a conflict] is the jury's proper function." Mendoza v. Kaplowitz, 215 App. Div. 2d 735, 627 NYS2d 89, 90 (2d Dep't 1995). Fundamentally, "it is for the jury to decide which expert's testimony is more credible" and when the decision is made the verdict cannot be set aside as against the weight of the evidence. Texter, supra , 22 App. Div. 3d at 832, 803 NYS2d at 688. Lastly, to complete the tautology, with no basis in the record to set aside the verdict for plaintiff as against the weight of the evidence there, obviously, is no ground to go further still and grant Dr. Steckel judgment notwithstanding the verdict. As a result, both branches of the motion directed at the jury's finding of liability, that is to grant judgment to defendant as a matter of law or to set aside the verdict as against the weight of the credible evidence, must be denied in their entirety.[FN3]

The alternative relief sought on this motion by Dr. Steckel presents a different issue for review and warrants a more favorable response. To be sure, the jury's verdict in the subject area of damages must be accorded respect as well for it is within the province of the jury to determine an appropriate award of damages. See Senko v. Fonda, 53 App. Div. 2d 638, 384 NYS2d 849 (2d Dep't 1976); see generally D. Siegel, New York Practice 688-90 (4th ed. 2005). But, when the award deviates materially from what would be reasonable compensation for the injury found by the jury, Pitera v. Winzer, 18 App. Div. 3d 457, 794 NYS2d 437 (2d Dep't 2005) particularly viewed in the light of damages awarded in similar circumstances in other cases, Miller v. Weisel, 15 App. Div. 3d 458, 790 NYS2d 189 (2d Dep't 2005), upon post-trial motion the Court may add to or remit a portion of the amount awarded by the jury. Dupal v. City of New York, 300 App. Div. 2d 619, 751 NYS2d 427 (2d Dep't 2002). The Court must grant such relief here.

At summation, plaintiff's counsel demanded from the jury a very substantial award of $1 million for the conscious pain and suffering endured by Barry Brenowitz covering the relatively short period between the surgery performed by Dr. Steckel in September 2000 and his death in [*6]January 2001. Crediting the observations of Barry Brenowitz during this period of time testified to by his wife and his son, who is plaintiff administrator of his estate, and also crediting the nursing notes and other records of his hospitalizations and nursing home care, the 50% runup in damages by the jury over and above the $1 million demanded at summation is excessive, unreasonable and out of harmony with the proof. It is, in short, a material deviation from reasonable compensation for the claimed injury. As a result, the Court must grant the alternative relief requested by Dr. Steckel to the extent that the award of damages for the conscious pain and suffering of Barry Brenowitz should be reduced from the amount awarded by the jury for that category of damage, $1.5 million, to an amount more in line with the evidence adduced at trial, that is the $1 million actually demanded by plaintiff at summation. If plaintiff refuses to stipulate to the remittitur, a new trial on the issue of damages only must be ordered.

Given all the foregoing reasons, the motion of defendant Dr. Joph Steckel for an order pursuant to CPLR 4404(a) granting judgment to defendant notwithstanding the verdict and/or setting aside the verdict as against the weight of the credible evidence is denied. The alternative relief sought by Dr. Steckel for a remittitur reducing the amount awarded by the jury for the conscious pain and suffering of decedent is granted to the extent that the award of $1.5 million in damages is to be reduced to $1 million. Therefore, unless within 30 days after service of a copy of this Decision and Order upon plaintiff, plaintiff shall serve and file in the Office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to reduce the damages awarded for conscious pain and suffering from the sum of $1.5 million to the sum of $1 million, a new trial shall be ordered on the issue of damages only and the verdict to that extent shall be set aside.

This constitutes the Decision and the Order of the Court.

Staten Island, New York_______________________________

January 26, 2006Hon. Eric N. Vitaliano

J.S.C. Footnotes

Footnote 1:Causality is not an issue. There is no question that Dr. Steckel's treatment of Barry Brenowitz was a substantial factor in causing injury and, ultimately, death to Mr. Brenowitz. If there were departures by Dr. Steckel from good and accepted medical practice in that treatment, each of those departures would be a substantial factor in causing his injury and death.

Footnote 2:The defense was especially muddled on this point since it seemed to suggest that from time to time Dr. Steckel and Dr. Benson deemed it appropriate to give to a patient in decedent's situation information regarding the possibility that all cancer had been removed and then explain why surgery for bladder removal was still necessary. Worse yet, the defense through both doctors provided to the jury the very information Dr. Steckel deemed he need not provide to Barry Brenowitz before he was asked to consent to the surgery which would lead directly to the complications that took his life.

Footnote 3:In light of the line of reasoning permitted by the evidence which supports the jury's determination that the ordering and conduct of the cystoprostatectomy on Mr. Brenowitz was a departure, there is no need for the Court to complete its analysis of plaintiff's claim of departure in Dr. Steckel's failure to obtain an informed consent. The Court observes, however, that Dr. Steckel's testimony regarding his experience-based concern that patients in decedent's situation often fail to give consent when informed of the remote possibility that tumor removal had made them cancer-free supports the conclusion that a reasonable patient, however inconceivably to Doctors Steckel and Benson, would not consent to the surgical procedure without a further diagnostic test. In any event, analyses of this departure and the departure claimed to have occurred post-operatively with the premature discharge of Mr. Brenowitz from the hospital are rendered academic by sufficient record support for the jury's initial determination of a departure in Dr. Steckel's performance of the surgical procedure without further diagnostic testing.