Fusco v Goldfarb
2012 NY Slip Op 31063(U)
April 9, 2012
Supreme Court, Suffolk County
Docket Number: 13064-2006
Judge: Peter H. Mayer
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[* 1]
SII()RT FURM ORDI,R
INDEX NO. 13064-2006
SUPREME COURT· STATE OF NEW YORK
IAS. PART 17 . SUFFOLK COUNTY
copy
PRESENT:
Hon
PETER 1L MA YER
Justice of the Supreme Court
......................................................
·········X
MARY ANNE FUSCO, as Executrix of the Estate
of VINCENT T. GUCCIONE, Deceased,
Plaintiff(s),
- against -
MOTION DATE 5-24-11
ADJ. DATE
Mot. Scq. # 005 . MD
Sullivan Papain Block McGrath &
Cannavo, PC
Attorney for Plaintiff
120 Broadway
New York, New York 10271
Kelly, Rode & Kelly, LLP
Attorney for Defendant
330 Old Country Road, Suite 305
Mineola, New York 11501
STEVEN R. GOLDFARB, M.D.,
Defendant( 5).
......................................................
·········X
Upon the reading and filing of the followingpapcr~ in this matter: (1) Notice of Motion by the plaintiff, dated
April 25, 2011, "nd supporting p"pers; (2) Affirmation in Oppo~ition by the defendant, dated May 13,2011, and Supp0l1ing
papers; und now
UPON DUE DELIBERATION AND CONSIDERATION
papers, the motion is decided as {i)llows: it is
BY THE COURT of the foregoing
ORDERED that the motion by the plaintiff, dated April 25, 2011, for an order setting aside the
verdict and direct a verdict in favor of plaintiff is decided as follows.
Plaintiff brings this application pursuant to CPLR 4404 (a) to set aside a verdict in favor ol'the
defendant, on the grounds that the verdict was against the weight orthe credible evidence, and directing a
verdict as to liability in favor of the plaintiff and granting a new trial as to the issue of damages. CPLR
§4404 (a) slates in pertinent part:
After a trial of a cause of action ...the court may set aside a verdict or any judgment
entered thereon and direct that judgment be entered in favor of a party entitled to
judgmenl as a maUer of law or it may order a new trial of a cause of action ...where
thc verdict is contrary to the weight of the evidence, in the interest of justice ..
[* 2]
Fusco \' Goh!farh
Index IVo. J3064-20lj6
Page]
"J"hepJalntitFs rcqucst ~lsks to set :\sidc the verdict as contrary to the weIght or the cvidcnce and
um.::ct a vcrdiclllfllability
111 i~lvur of tile: plaintifT Tilt..::
remedy' I'or setting :'lside a \'crelict as conli'ary 10 tht..'
weight of the evidence IS to remand the matter for a new trial. The remedy fordirectmg a \'Crdil't is simply
an entry nfJudgmcnt in lin'tH of the moving party and settm}; the martel' for a d,llllages tnal. The Court \vill
treat the motion as one seeking any ofl'ither ofthc available remedies under CPLR 4404{a).
1"11eJaintdf herem hrought thIS action for the wrongful death and conscious pain and suffering or
p
the deceased, Vincent Guccione resulting IrOlll the alleged mappropriate renewal of a prescnption of the
lllC.'dieation llytnn by the delCndant [lnd hIS stafT.ln support of this claim, the plaintilTsubmitled
i,';videnee
thar the decedent had discontinued the use of Hytrin pursuant to the defendant's orders in June 01"2004 and
that in August 01'2004 the delCndant's daughter submitted a list of medications that her father was on
which did ll()t include the medicatIon llytrin. They further alleged thut the delendant and his staff biled to
update the deeedC.'nt's medication list, i~lited to check the decedent's medical chart and failed to check the
decedent's medication refill record to ascer1mn whether or not the decedent had continuously been taking
this medication as of June 2005. As a result of these alleged l~lilures, it was claimed that an erroneous
medication list was sent to a visiting nursing service on June 6, 2005. Thercafi.er, at the request ofthc
visiting nurse service a prC.'scription 1(w Hytrin was phoned in to a local pharmacy by a member of the
delendant 's stafr Upon reeelving the prescriptIon the deceased ingested a dose ofI-lytrin on June 11 \vhich,
allegedly, caused the decedent's death on June] 2, 2005.
Specifically,
theJllry
answered
the following
questions
in the negative.
1) Did the defendant, Stephen Goldfarb, rvt!). and/or his stalYdepart j]~om
good and accepted standards of medICal practice by renevv'ing a prescnption
J()l" the medication
f Iytrin for Vincent Guccione on June 10,2005'1
2} Dill the Jdendant,
Stephen Cioldfarb, M"D. and/or his staff~ depart from
good and accepted standards of medical practice by failing to maintain an
accurate rnedication list l'i)r Vincent Guccione II'om May 2004 through June
10, 2005'!
The cvidence revealed that the de kndant is a primary care physician who treated the decedent from
approximately
September 1998 up until the time or his death on June 12,2005. There was a gap in
treatment !I'mn approxImately October, 2000 until August 23. 2003 [IS the decedent was living In New Ynrk
City.
DUrIng the course of decedent" s treCltmenl, the dercndant prescribed the medication Hynin. which
was used to tn:<lt the decedent's enlarged prostate. ]-!ytrin is in a class or medications calleel alpha blockers
that can cause a drop in blood pn:ssure by dilating thc blood vessels. Because it can cmlsc a preCIpitous
drop in blood pressure It was nut conSIdered to be \vlthin the standard of cnrc to slart a patient with a 5
mIllIgram dose. Good practice requires that the patient be started on a much lower dose and slowly worked
up tuthe 5 mil!lgrmn dose. Therefure the doctor must know that the patienl is and has becn cOlllinuousfy
on the medication bd()]"C renewing the prcscnplion.
[* 3]
Fusco l' Golf(farb
llldex No. /3064-2006
Page 3
The uecedelH was a 93 year old man \\"ho also suffered from a hean condition which caused hi$
hean to have to pump harder. Introducing a medication that could cause a marked drop in blood pressur..:
\\"ould put additlOnal pre:isun: on the heart. Not\\"ithstanding this condition. the patient also had a history
orh~ pcncnslOl1.
"I·hed('fel1dant' s medical chart lor the patient contained inconsistent entries regarding the patient' s
use ofJ-lytrin. There wus evidence that the dclclldal1t wanted the deceased off the llytrin as of June. 2004.
Ilowevcr, the char1 entry for July 30. 2004 indicatcs that thc patiel11\vas still taking 5 milligrams ofllytrin
daily. The defendant testilied that he sa\\' the patient that day and he was told directly by the paticnl' that
he was taking the I (yll·ill. ["hereafter, on August 8. 2004 Mary Ann Fusco, the defendant's daughter, scnt
in a list of her father's llledicnlions which did not include! Iytrin. The defcndant again saw the deceased
on Junc 4. 2005 as the dL:t.:cased
was surfcring a bout of congestive heart Illilure the onset of which began
in May 2n()5. The defendant maintained that the deccased was still on Hytrin at this lime.
At the June 5 visil it was determined that the deceased could benelit from a visiting nurse service.
There/ore. on June 6, 2005 the defendant's oflice faxed a medication list for the deceased to the Dominican
Sisters( visiting nurse service) which contained Ilytrin which, it was alleged. was erroneous. The list was
generated at the defcndant's offiee predicated on a note entered in the chart in March 2005.
On June 10, :2005 another stall' member of Dr. Goldfarb's office called rhe Sag Harbor Pharmacy
as a result of a request from the Dominican Sisters and renewed a prescription for Hytrin for the deceased.
The staff member testified that she had checked the deceased's chart and deemed the felill to be a nonnal
one because she had concluded that's what the chart revealed. She did not pick up June S, 2004 instruction
sheet tor the patient discontinuing Ilytrin or the August S, 2004 note from the deceased's daughter.
On June 11, 2005, lhe deceased ingested 5 milligrams of I-lytrin and experienced a drop in blood
pressure. He was given mediCations and fluids to incrcase his blood pressure. He died on .June 12,2005 as
the multiple medications and attempls to raise his hlood pressure biled"
The plaintiffs ex perl opined that the ckfcnclun! departed I"ro111
good and accepted standards of
medical practit.:chy renewing the prescription ror 5 milligrams orI-lytrin 011 JUlle 10,2005 as well as 1~liling
to maintain an accurate, updatcd medication list in a scparate location in the patient's chart He further
opincd that these dcpartur..:s were suhstantial (~lctorsin Mr. Guccione's death.
The trial evidence included the defendant's chart which also contained rdcrencc to the July 30 note
indicating that the patient laid him he was still taking Ilytrin <:L"
well as a notC'as of June 4, 2005 that all
the pmicnt· s medications were unchanged. This entlY was made as a result of a physical examination or
the deceased and the conwl"sation that took place het\.\'cen them during said examination" The plaintifT
impeached the delendant when the defendant acknowledged that he indulged in a ··working assumption'·
that the decedent was still {<:lking
(lytrin on JUIlC5, 2005.
Also ill the trial transcript. howo.:'Vl'L testimony fromlhc dcfend<lnt doctor. originally givcn during
is
his i~BT. that it is his custom and practice or fOutmc to always ash: il"the patiellt is on al! the mdividuaJ
medicatIOns previously listcd. In the instant casco the previous list referred to wns the July 30, 20041isl.
[* 4]
Fusco
l'
Goldfarh
ludex 1'10. 13()64~20()6
Pane 4
"
Thus. the entry in the patlent's chart that the mec!Jcutions were unchanged arguably mcant that those that
were unchanged \verc the drugs listed dUring the .July 30. 2004 vIsit, and that this \vas confirmed 111
conversation between the defendant Jnd the deceased on June 5, ::W05.
The evidence also 5h(11;V5
that. dunng the July 30. 2004 visit the deceased railed a simple memory
lest thus arguably raiSIng doubt as to the deceased's ability to accurately remember his medications. Distinct
rrom [1m cvicknec. lu)\vewr. was the testl1ll0ny oCthe deceased's daughter and [he home health md that
the decedent never nU1l11est any memory problems and was completely alert and oriented up until the time
f
01" his death. ll1cluding his ability to recall his medications that he took on a daily basis. Further, the list
proVIded on July 30 \\'as not just based on a routine history but rather on a conversation the defendant had
with the deceased regarding the risks and benefits of ]-Iytrin. As the defendant said, in a 91 year old.
sometimes comfort trumps risk
On June 8 and/or June 10, 100S, it was alleged that the Dominican Sisters had received extremely
low blood pressure readings rrom the deceased and prescribing l-Iytrin to the dl:ceased under these
circumstances would be contraindicated and beneath the standard of care. The defendant's staff Patricia
Brown and Claire Weston testified that they receivcd no notice from the Dominican Sisters a~ to these
readings and, had they heen advised, they would have reported it to Dr. Goldfarb, the defendant. Both
witnesses understood the significance of blood pressure readings below 100. The defense expert made clear
that any registered llurse should know that a patient would not be a candidate for Hytrin with blood pressure
readings below 100. He further opined that if the registered nurse (Dominican
Sisters) had not
communicated the decreased blood pressure readings to Dr. Goldfarb, such failure would have been a
departure from the standard of care. For this reason, the Dominican Sisters were put on the verdict sheet
so the jury could determine the degree of fault, if any, of the Dominican Sisters if they had found Dr.
Goldfarb neglIgent.
Finally, Ms_ Fusco testified that when a particular medication that her father took was discontinued
she would remove the actual hottle from her parent's home so as to preclude any error in taking
medkations. This evidence was 111
significant contrast to the testimony oCthe nurse from the Dominican
Sisters Nursing Service that she saw a empty bottle orJ-Iytrin at the deceased's residence on June &, 2005
thus giving rise to the inlerence that the deceased was still taking I-Iytrin as of June 1005.
i\lthough the motion is requesting the Court to set aside the findings orthe Jury on
negligence. it's appropriate to comment on causation /\11 autopsy was performed and the
was cardiac 1~ljlurc \-\lith myocardial isehemra due to acquired aortic valve stenosis and
cardiovascular disea~e. l'here is no suggestion by the plaintifr's pathologist that the death
or related to the ingestioll of I lytrin 24 hours before the decedent's death.
the question or
cause of death
atherosclerotic
was caused by
The pmver to set aside ajury verdict and order a nc\v trial is an Inherent 011e, \vhich is codified ill
CPLR. Sec. 4404(a)(.I'(,(, .Me('u/"thy \' Pori olN r Authority, 21 /\D2d 125, 127,248 NYSld 713: 5;iegd
N}' jJmclicl!. S'I!(. 4(6). The statute provides that a Court may order a new triar'whcn
the verdict is contrary
to the \vclght oCthe evidence. in the mterest of justice or where the jury canllot agree."
Whether a jury verdIct
IS
against the weight of the evidence is essenlially
a discrctionary
and bctual
[* 5]
Fusco l' Goh(j(lrh
Index No. ]J()64-2()(}6
Pagc 5
cktC'rmination(Nicw:/1"O I' flork 113 i\Dld 119 495 NYS2d 184) This question IS disllllguishecl II\Hn the
assessment of whether a jury vcrdicl. as a maller ur I<I\V.is supponed by sufficient evidencC'. (Cohen I'
Ilullmurk Canis .:.+) NYld 493. 410 N'{s1d 281. accord DOlllingue l' "\1un/w((wl & Bronx 5'lIIloce Tr.
()pl'rofing ,·1I1i!loi"it.1',46 NY2d 528. 415 NYS2d 634) '1'0 sustain a determInation
that ajury' verdict is not
supported by sufilcicnt evidence as a matter uf law, there must be llO valid line of reasoning and
permissablc in Icrcnccs which could possibly lead rational bet finders to the conclusion reached by the jury
on the baSIS of the evidence presented at trial (Cohen I' !-/a!!lIloi"k C'uI"ds, supra). The result of sueh a
determination leads to a directed verdict in favor of the movant.
'rhe critena to sct aSIde a jury verdIct as against the weight of the evidence is less stringent as such
<.l etermll1atlOl1 rcsults 111 a new trial and docs nut deprive the parties of their right to ultimately have all
d
disputed j~\C1S
resolved by a jury. Setting aside a verdict as against the ",'eight of the evidence requires a
discretionary baJanclng of many bctors( ('ohen v //o!!mork Corcis, SlIjJl"(( of 4(9). The discretionary power
to set aside ajury verdict and order a new trial must be exercised with considerable caution as a successli.d
litigant is elltitled to the bene/Its ora ra'v'orable verdict. Fact llnding is, in general, the province ofthejury,
not the trial court. (Nicus/ro )' !)ork. supra. j~"jJis v I/oe!:::e!, 57 AD2d 968, 394 NYS2d 91).
Particular deference has traditionally been accorded to jury verdicts in favor of defendants in tOli
cascs because the jury need not necessarily Jlnd that a ddendant has prevailed by a preponderance oftbc
evidence but ruther may sImply conclude that the plmntl tThas failed to meet the burden of proof required
(Nico.l'lro l' Park. supra. Siegd NY Pmctice, 5,'ee, 406). Thus, it has been said that ajury verdict in favor
of a deCcndant should llot be set aSlde unless "the jury could not have reached the verdict on any fair
interpretation of the evidence " ( Tripoli l-' Tripo!i. 83 AD2d 764. t(lT'd 56 NY2d 684; Cubc/a Ii York
infel"/w/iona!30
AD3d 557, 818 NYS2d 136 ).
The court has examined the trio.! record as presented by the parties to the action and concludes that
the trial evidence is sun1cient to deny thc request for a directed verdict in favor of plaintiff and against the
delcndant.
The court also Ends that sun1cicnt factual questions in the tnal evidence regarding the departures
alleged against the defendant Dr Goldhub v"rere presented and that the answcrs given by the j~lct finders
to the dcparturc questions cannot be said to be against the 'vvctght of the evidence. For these reasons. the
court concludes that the verdict as reported birly reJ1ecls an evaluation orthe evidence and IS not against
the weight thereof
Accorclingly,
the motion
This constllutes
J)aied:
I XI
IS
dellied.
the decision and order or the Court.
------,
)
April 9. 2012
FINAL DISPOSITION
[ J NON FINAL DISPOSITION
