Matter of Russo v Levat

[*1] Matter of Russo v Levat 2014 NY Slip Op 51398(U) Decided on September 19, 2014 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2014
Supreme Court, Westchester County

Michael Russo, As Administrator of the Estate of Barbara Russo, Deceased, and Michael Russo, Individually, Plaintiff,

against

Jay Levat, M.D., Westchester Medical Group, Edward Jarvis, M.D., Toko Morimoto, M.D., Emergency Medical Associates, PLLC, and Westchester County Healthcare Corporation, Defendants.



23220/2010



Kramer, Dillof, Livingston & Moore

Attorney for Plaintiff

217 Broadway

New York, New York 10007

Heidell, Pittoni, Murphy & Bach, LLP

Attorney for Defendants Dr. Jay Levat and Westchester Medical Group

81 Main Street

White Plains, NY 10601

Grespach Sikoscow, LLP

Attorney for Defendants Edward Jarvis, M.D., Toko Morimoto, M.D., Emergency Medical Associates of New York, P.C., s/h/a Emergency Medical Associates, PLLC 40 Fulton Street

New York, New York 10038

Martin Clearwater & Bell

Attorney for Defendant Westchester County Health Care Corporation

245 Main Street

White Plains, New York 10601
William J. Giacomo, J.

Factual and Procedural BackgroundOn Wednesday January 6, 2010, at about 5:30 p.m. plaintiff's decedent Barbara Russo was picking up her daughter from religious education when she felt sudden chest tightness, pain in her throat and a headache. She called her sister Lisa Corvino to come and drive her to the Emergency Room since she felt she could not drive herself. Ms Corvino picked up Ms. Russo and her daughter Taylor and drove them to the emergency room of Westchester County Medical Center owned by defendant Westchester County Healthcare Corporation ("The Hospital").

Ms. Russo called her husband at about 5:00 p.m. to tell him that she was going to the emergency room because she felt like she had a train on her chest and like she had swallowed a pill which was lodged on the back of the throat.

A few minutes after arriving at the hospital, Ms Corvino and Ms. Russo were seen by triage nurse Kathleen King. While in the examining room, Ms. Corvino states that the nurse pointed out to her a rash on Ms. Russo's neck and chest. According to Ms. Corvino, she told the nurse that while they were growing up, her sister would [*2]always get a blotchy rash when she was nervous. The nurse then told Ms. Corvino that Ms. Russo was having an allergic reaction.Thereafter, Ms. Russo was put on a nebulizer and given Benadryl. While in the examining room, Ms. Russo told the nurse that it felt like something was stuck in the back of her throat. At that time, Ms. Russo was given medication for acid reflux. Ms. Russo also vomited several times while in the examining room.

Ms. Russo was then briefly seen by Dr. Toko Morimoto who ordered an EKG.

At some point, a nurse told Ms. Russo she was having an anxiety attack. Ms. Corvino told the nurse that Ms. Russo had never had an anxiety attack before and she doubted Ms. Russo was having one then. The nurse tried to give Ms. Russo Zanax but she refused to take it.

When Dr. Morimoto's shift ended at about 9:00 p.m., she transferred the care of Ms. Russo to Dr. Edward Jarvis.

Mr. Russo arrived at the hospital at about 8:30 p.m. and was told by Dr. Jarvis that his wife was having an allergic reaction or an anxiety attack. He was told that an EKG was performed and it was normal.

Ms. Russo was discharged from the emergency room at about 10:00 p.m. that evening. Ms. Russo's aftercare instructions state that the "Reason for Visit" was "unspecified chest pain." Ms. Russo's Primary Diagnosis was "Allergy, unspecified, not elsewhere classified" and her Secondary Diagnosis was "Unspecified environmental and accidental causes, Injury or poisoning occurring at/in other specified places."

The next morning, Thursday January 7, 2010, Ms. Russo was having the same symptoms so Mr. Russo called their primary care physician Dr. Jay Levat requesting an appointment that day. Ms. Russo was experiencing significant throat pain, so Mr. Russo called Dr. Levat's office two more times that morning before getting the same day appointment.

During her visit that afternoon, Ms. Russo informed Dr. Levat that she had gone to the emergency room the day before complaining of chest tightness, throbbing and throat pain and was diagnosed with an allergic reaction. She told him that she was given a prescription for a steroid. Dr. Levat told her not to fill it because he did not think she was having an allergic reaction.

During her January 7, 2010 visit with Dr. Levat Ms. Russo told him that she was still experiencing chest pain and that she felt like a pill was lodged in the back of her throat. She was also nauseous and had a headache.

After performing a physical examination of Ms. Russo, Dr. Levat sent her for a sonogram to rule out a gall bladder issue because she exhibited upper abdominal tenderness. Dr. Levat's medical records from the January 7, 2010 visit indicate that after listening to Ms. Russo's heart she had a normal S1 and S2, no murmur, rub or gallop. Her respiratory exam indicated no rales, rhonchi or wheezes. It was Dr. Levat's impression that Ms. Russo was suffering from esophagitis. He told her to take Nexium twice a day for 14 days and to take a liquid antacid before bed and to stop taking Docycycline.

According to Mr. Russo, on Friday January 8, 2010, Ms. Russo was still suffering from tightness and pain in her chest, and the feeling of a pill lodged in her throat. She was still nauseous and had a "terrible" headache. That day, Mr. Russo called Dr. [*3]Levat's office to get the results of the sonogram which was negative. At that time Mr. Russo informed Dr. Levat that Ms. Russo's symptoms were the same and Dr. Levat told him he thought she had the flu.

According to Mr. Russo, throughout the weekend, Ms. Russo continued to complain of headache, nausea, chest tightness and the feeling a pill was lodged in her throat. She told Mr. Russo she felt a throbbing sensation in her neck.

On Monday January 11, 2010, Ms. Russo was still having the same symptoms, so Mr. Russo called Dr. Levat for an appointment. Kristyna Russo, Ms. Russo's step daughter, took Ms. Russo to her appointment that morning.

At that visit, Ms. Russo again told Dr. Levat that she had tightness in her chest and still felt like something was lodged in her throat. She was also suffering a headache, body aches, and had a temperature of 102. Dr. Levat's records indicate that his impression was that she was suffering from "Flu Syndrome" and "Esophagitis." He informed Ms. Russo that she was in the end stages of the flu. Dr. Levat's records indicate that his cardiovascular examination revealed: normal S1 and S2, no murmur, rub or gallop. His respiratory exam revealed: no rales, rhonchi, or wheezes.Ms. Russo returned home at about 1:30 p.m. At about 6:00 p.m., while on his way home from work Mr. Russo received a text message that 911 had been called from his home. When he arrived home his 11 year-old daughter Taylor told him that Ms. Russo had collapsed in the bathroom and that she had called 911. The police arrived and administered CPR. Ms. Russo was taken to Westchester County Medical Center where she was pronounced dead.

An autopsy revealed that Ms. Russo died from an aortic dissection; a condition in which tears in the aorta causes blood to flow between the layers of blood vessels instead of the lumen, where it belongs. There is no dispute that if Ms. Russo was suffering from this condition on January 7, 8, or 10, 2010, it might have been revealed on a chest x-ray. However, a CT Scan would have definitely revealed the presence of an aortic dissection. If discovered, the aortic dissection could have been treated surgically.On September 23, 2010, plaintiff commenced this medical malpractice wrongful death action.On February 26, 2013, the Court (Smith, J.) denied defendants' motions for summary judgment dismissing the complaint finding that there were numerous issues of fact.

A jury trial was commenced on April 16 and on May 9, 2014 the jury returned a verdict finding that none of the defendants deviated from good and accepted medical practice in their treatment of Ms. Russo.

Plaintiff now makes this CPLR 4404 motion to set aside the verdict on the ground that the verdict is against the weight of the credible evidence. Plaintiff seeks a new trial with respect to the following verdict questions:

3(a) Did defendant Dr. Toko Morimoto depart from good and accepted medical practice by not investigating a cardiovascular cause for Barbara Russo?

4(a) Did defendant Dr. Edward Jarvis depart from good and[*4]accepted medical practice by not investigating acardiovascular cause for Barbara Russo?7(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice by not investigating a cardiovascular condition?

8(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice on January 7, 2010, by not sending Barbara Russo for a cardiac consultation?

11(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice on January 11, 2010, by not sending Barbara Russo for a cardiac consultation?Plaintiff argues that the evidence of Ms. Russo's complaints when she presented at the emergency room required an evaluation for a cardiovascular problem. Notably, when Mrs. Russo arrived at the hospital at 5:57 p.m., one of her main complaint was "chest tightness." The complaint of "chest tightness" and "throat tightening" were entered on her triage sheet. Further, Ms. Russo's Aftercare Instructions noted that the reason she visited the emergency room was "unspecified chest pain."

Plaintiff further argues that the History of present illness portion of the Emergency Room Physician's notes indicate that Ms. Russo was experiencing "pain/throbbing" in the back of her throat. Ms. Russo stated that she still feels "very throbbing" in the throat and tightness." The emergency room notes also indicate that Ms. Russo had vomited while in the hospital. Plaintiff argues that all these conditions are indications of a cardiovascular issue which needed to be explored. Plaintiff argues that shockingly a cardiovascular cause was never considered by any of the defendants despite Ms. Russo's continued presentation of cardiovascular symptoms.

Rather, the emergency room medical records indicate that Ms. Russo's differential diagnosis were: "allergic rxn, panic attacks, perimenopausal (pt has normal regular periods), thyroid problem . . . " Plaintiff argues that although Ms. Russo's Aftercare Form indicated that her chief complaint was "unspecified chest pain," nevertheless, her primary diagnosis was "[a]llergy, unspecified, not elsewhere classified" and her secondary diagnosis was "[u]nspecified environmental and accidental causes" and "[i]njury or poisoning occurring at/in other specified places."Plaintiff also argues that although Dr. Levat's records indicate Ms. Russo was presenting with symptoms of a cardiovascular event, a cardiovascular cause was not explored by Dr. Levat. The plaintiff refers to Dr. Levat's notes which indicate that he was informed Ms. Russo was "[s]een at WCMC yesterday for chest and throat pain." His January 7, 2010 notes document Ms. Russo's history as "[s]udden squeezing sensation from upper chest yesterday afternoon." He also noted that "pain seemed to radiate up to throat" According to Dr. Levat's notes his impression of Ms. Russo on January 7, 2010, was that she was suffering from "Esophagitis" and "Vomiting." When he saw her again on January 11, 2010, and she was still suffering from the same [*5]ailments, his impression was "Flu Syndrome" and "Esophagitis." Plaintiff argues that Dr. Levat's records do not indicate that he ever considered a cardiac cause for Ms. Russo's complaints, despite the fact that he discounted the emergency room diagnosis of "allergic reaction."

Plaintiff also relies on the trial testimony of his expert, Dr. Alan Schecter, a board certified expert in internal and emergency room medicine. Dr. Schecter testified that the complaint of chest tightness is a form of chest pain and that the description of "chest tightness" is considered by an emergency room physician to be a complaint of chest pain. Dr. Schecter testified that when a patient complaints of "chest tightness" the emergency room physician must immediately begin thinking of things that are associated with "chest tightness" and the first thing to be considered is a cardiovascular event. Dr. Schecter testified that according to good and accepted medical practices, when a patient complains of chest tightness or chest pain, the first things to consider and rule out are an acute thoracic dissection, an acute thoracic myocardial infarction, and acute coronary syndrome. Dr. Schecter testified that a cardio work-up should have been done immediately including heart monitoring, an EKG, a chest x-ray and blood work. Although an EKG was performed, no other cardio testing was performed.

Dr. Schecter also testified that it was significant that Ms. Russo vomited while in the emergency room since there are visceral components of a cardiac event such as nausea and vomiting. Dr. Schecter stated that Ms. Russo's complaints of chest tightness, throbbing in her neck and then vomiting should have pushed the suspicion of a cardiac cause to the top of the physician's list. Yet, other than an EKG no cardio cause was investigated or ruled out. Dr. Schecter notes that, according to the emergency room records, it wasn't even considered in as a differential diagnosis.

Plaintiff also relies on the testimony of expert Dr. Harvey Shanies who is board certified in internal medicine with sub-certifications in pulmonary medicine and critical care medicine. Dr. Shanies testified that a cardiovascular cause should have been investigated and ruled out since Ms. Russo experienced a sudden onset of chest tightness and that the was of an impact that it compelled her to go to the emergency room, which she had never done before. Dr. Shanies testified that it was also significant that Mr. Russo called Dr. Levat 4 times the next day suggesting that Ms. Russo was in great discomfort. Dr. Shanies testified that it was a departure from good and accepted medical practices by defendants not to consider a cardiovascular cause. Dr. Shanies also testified that unexplained chest pain should be evaluated with a chest x-ray or by sending Ms Russo for cardiac consultation.

Plaintiff also relies on the testimony of defendant Dr. Jay Levat. During cross examination, Dr. Levat agreed that sudden squeezing of the chest is a way to describe chest pain. He also agreed that if the only information he had was chest pain or squeezing he would consider a cardiovascular event. Dr. Levat also agreed that Mrs. Russo was having chest pains when she was in his office on January 7, 2010. Dr. Levat further agreed that a complaint of throbbing could be related to a cardiovascular event. Dr. Levat admitted that it "Maybe bad medically" if there is squeezing, tightness and throbbing in the chest for a doctor not consider a cardiovascular cause.

Plaintiff argues that at trial Dr. Levat acknowledged that the symptom of an aortic dissection is chest pain that radiates to the neck and throat as well as pain swallowing [*6](843)[FN1] .Plaintiff also notes that during his cross examination Dr. Levat testified that in his treatment of Ms. Russo he considered all possible causes, including a cardiovascular cause, but that he did not rule out a cardiovascular cause for Ms. Russo's complaints (856-857). Plaintiff notes that although Dr. Levat claims to have considered a cardiovascular cause of Ms. Russo complaints, there is no indication in his records that from January 7th through January 11th that he considered such a cause. Plaintiff argues that based upon Dr. Levat's failure to consider a cardiovascular cause for Ms. Russo's symptoms, the jury's finding with respect to Dr. Levat on this issue is against the weight of the credible evidence since Dr. Levat acknowledged that he considered a life threatening cardiovascular event based upon Ms. Russo's complaints, but took no steps to rule it out.Plaintiff argues that during cross examination, Dr. Jarvis also acknowledged that when a patient presents with a sudden onset of chest pain a physician should think "cardiovascular" (246-47). Plaintiff notes that although Dr. Jarvis testified that Ms. Russo did not complain of chest pain to him while he treated her at the hospital, he acknowledged that the aftercare instructions which he filled out and provided to Ms. Russo indicated that her chief complaint was "[u]nspecified chest pain" (379-380). Further, Dr. Jarvis acknowledged that while Ms. Russo only complained to him of chest tightness, the word tightness is often used by patients to describe chest pain (296).

The plaintiff further argues that Dr. Jarvis testified, that putting aside the rash, if a patient has a sudden event that causes them to go to the emergency room with pain described as chest tightness with throbbing in her throat, he would consider may causes including cardiovascular cause (320). Plaintiff argues that while at the hospital Ms. Russo's sister informed the triage nurse that her sister was not having an allergic reaction, rather Ms. Russo got a blotchy rash when she was nervous. The plaintiff notes that despite this information Dr. Jarvis undertook no medical effort to determine if the cause of Ms. Russo's complaints was cardiovascular.

Plaintiff also notes that at trial, Dr. Jarvis acknowledged that at his 2012 deposition in this case he testified that during his discussion with Ms. Russo regarding her discharge information he told her she should follow up with her primary care physician "the next day" to get a "cardiac stress test" (586, 594-95, 596). Plaintiff argues that despite Dr. Jarvis's claim that Ms. Russo did not complain of chest pain to him on January 6, 2010, he nevertheless recommended that she get a cardiac stress test the very next day. According to plaintiff, the only reason to recommend cardiac testing was to rule out a cardiovascular cause. Yet, Dr. Jarvis did not order such tests while Ms. Russo was in the emergency room. Therefore, according to plaintiff, the jury's verdict with respect to Dr. Jarvis's failure to investigate a cardiovascular cause is against the weight of the credible evidence.Plaintiff also relies on several of the defendants' experts' trial testimony to support his claim that the verdict is against the weight of the credible evidence. According to plaintiff, Dr. Mark Silberman, a defense expert, testified that chest pain [*7]can be described in many different terms including chest tightness.

Plaintiff also relies on the testimony of another defense expert Dr. John O'Grady. Dr. O'Grady testified that patients describe chest pain in several different ways including squeezing, pressure, and tightness. Plaintiff argues that Dr. O'Grady testified that the pain from an aortic dissection can radiate up to the throat, although it usually didn't. Plaintiff also relies on Dr. O'Grady's testimony during which he stated that "if you considered there is a possibility [of a cardiac cause] and you don't rule it out in your head by the history and physical exam and the probabilities and you don't take into account all history and physical, and then you make your decision, if you still think there is a possibility of a cardiovascular, then you must rule it out. If you think that that is remote, the answer is no, you don't have to rule it out. If you think it is not cardiovascular based upon a good and accurate history and a good and accurate physical exam, considering the probabilities based upon the history and physical, the age of the patient, you then if it is still in the cardiovascular area, you must rule it out, yes." (2257). Failure to do so would be a departure from good and accepted medical practice.

Plaintiff argues that despite Dr. O'Grady's testimony that a cardiovascular cause should have been ruled out neither Dr. Morimoto, Dr. Jarvis, or Dr. Levat ever ruled out a cardiovascular cause.

Plaintiff further argues that he is entitled to a new trial with respect to Dr. Morimoto based upon the Court's failure to give a missing witness charge. Plaintiff argues that although Dr. Morimoto was a defendant in this case and was present during every day of trial, except one afternoon. Dr. Morimoto did not testify in her own defense. Accordingly, plaintiff argues that the court's refusal to give a missing witness charge, which was requested as soon as practicable, was reversible error.

In opposition, defendants Dr. Morimoto, Dr. Jarvis and Emergency Medical Association of New York ("the Emergency Room Doctors") argue that the jury correctly considered the evidence and found that they were not negligent in their treatment of Ms. Russo. The Emergency Room Doctors argue that sudden throat pain is not a typical symptom of an aortic dissection. Moreover, a patient's symptoms must be considered within the context of the overall presentation of the patient. At trial Dr. Jarvis testified that in some context sudden chest pain or chest tightness would lead a doctor to think of a cardiac cause, however, not in all contexts.

At trial Dr. Jarvis testified that an aortic dissection typically presents as sudden and very painful. Further, he stated that throbbing is not a common description related to a dissection. Rather, the throbbing in Ms. Russo's throat and her other symptoms were likely due to an allergic reaction. Dr. Jarvis testified that when he saw Ms Russo at about 10:00 p.m. she told him that her symptoms had subsided. She had no pain other than a headache. Moreover, the Emergency Room Doctors argue that there is no evidence in the hospital records that Ms. Russo had chest pain. Rather, her complaint was chest tightness. The Emergency Room Doctors argue that the fact that there is a reference to "chest pain" in the pre-printed aftercare notes does not mean that Ms. Russo had chest pain.Dr. Jarvis also testified that he did consider a cardiovascular cause but diffuse chest tightness would not be consistent with a cardiac etiology, but it can be consistent [*8]with an allergic reaction. Moreover, aortic dissections do not respond to treatment. Dr. Jarvis stated that he did not order a chest x-ray or CT scan because, based upon Ms. Russo's history and response to treatment these tests were not indicated. Further, according to his discharge notes, he told Ms Russo that her present illness was not consistent with cardiac etiology (549-550). The Emergency Room Doctors argue that Ms. Russo did not suffer from chronic hypertension, diabetes, elevator cholesterol, and did not have a family history of heart disease, dissection or pulmonary embolism. Further, she was not a smoker and her age of 41 was not a risk factor.

The Emergency Room doctors argue that while plaintiff's expert Dr. Schecter testified that they deviated from good and accepted medical practice by not investigating a cardiac cause for Ms. Russo's complaints, sufficient evidence was before the jury to allow them to find that there was no deviation from good and accepted medical practice. The Emergency Room Doctors argue that their expert Dr. Silberman testified Dr. Morimoto and Jarvis provided appropriate care to Ms. Russo. Dr. Silberman testified that allergic reactions often present with different type of rashes and can also present with throat discomfort or a funny sensation in the throat as well as chest tightness. Further, according to Dr. Silberman's testimony, aortic dissections usually present with patients experiencing extreme pain described as sharp, ripping or tearing (1862). The Emergency Room Doctors argue that Dr. Silberman testified that it was not a departure from good and accepted medical practice for Drs. Morimoto and Jarvis not to conduct additional investigating including a chest x-ray and a CT scan or other blood work. Moreover, Dr. Silberman testified that had a chest x-ray been done on January 6, 2010 it would have been normal (1892). Dr. Silberman noted that the EKG performed on January 6, 2010 was normal (2045).

The Emergency Room Doctors also rely on the deposition testimony of Dr. Morimoto [FN2] Dr. Morimoto testified that she performed a cardiovascular evaluation on Mrs. Russo by listening to her heart sounds with a stethoscope, palpating her abdomen and checking her pulse. Although she did not document this examination, she stated that had there been any abnormal findings she would have documented those findings. Dr. Morimoto testified that she ordered the EKG because one of the atypical symptoms of heart attack can be throat tightness. Dr. Morimoto testified that she visited Ms. Russo several times to reassess her condition and that towards the end of her shift, Ms. Russo was no longer complaining about chest tightness or throat tightness.

The Emergency Room Doctors argue that plaintiff was not entitled to a missing witness charge with respect to Dr. Morimoto because of plaintiff's counsel's untimely request for such a charge. The Emergency Room Doctors note that although there were several charging conferences plaintiff did not request a missing witness charge for Dr. Morimoto until May 7, 2014 which the Court denied as untimely. The Emergency Doctors also argue that even if the Court considered giving a missing witness charge, it would have denied the application because the testimony of Dr. Morimoto was [*9]cumulative to the evidence already presented at trial.

Westchester County Healthcare Corporation ("The Hospital") opposes this motion noting that plaintiff is not seeking to set aside that portion of the verdict which sought to impose direct liability upon it. However, with respect to plaintiff's vicarious liability claims with regard to the conduct of Drs. Morimoto and Jarvis, The Hospital argues that the verdict was based upon a fair interpretation of the evidence. The Hospital argues that since the plaintiff is not challenging the first two questions of the verdict sheet Questions 1(a) and 2(a) which asked whether Dr. Morimoto or Dr. Jarvis, respectively, departed from good and accepted medical practice by diagnosing Ms. Russo with an allergic reaction, the plaintiff is conceding that that portion of the verdict is based upon a fair interpretation of the evidence. Therefore, according The Hospital, it logically flows that Drs. Morimoto and Jarvis did not deviate from good and accepted medical practice by not "investigating" a cardiovascular cause for Ms. Russo's symptoms. The Hospital also makes arguments similar to those made by the Emergency Room Doctors.

Dr. Levat also opposes this motion on the ground that the verdict is supported by a rational interpretation of the evidence. According to Dr. Levat, when he saw Ms. Russo on January 7, 2010, he noted that she had experienced a sudden squeezing sensation in her upper chest and that she had taken Doxycycline for Rosacea prior to the onset of her pain (940-941). Moreover, according to Dr. Levat's testimony an aortic dissection involves a "very severe ripping tearing sensation. Probably the worst pain that anyone can imagine." (944). Dr. Levat notes that the fact that Ms. Russo was able to sleep the night before seeing him on January 7, 2010, was an indication that she was not suffering from the type of pain usually associated with an aortic dissection. Dr. Levat further argues that his examination of Ms. Russo on January 7, 2010 revealed no abnormal heart rate or rhythm (968). Dr. Levat also notes that esophagitis is a well-known complication of ingesting Doxycycline. Therefore, according to Dr. Levat, it was reasonable for the jury to conclude that Dr. Levat did not deviate from good and accepted medical practice in not doing further investigation into a cardiovascular cause for Ms. Russo's complaints.

With respect to Ms. Russo's January 11, 2010 visit, Dr. Levat argues that during that visit Ms. Russo indicated that her symptoms had changed. She was complaining of body aches and a fever which suggested a flu-like illness. Dr. Levat argues that there were no signs of pulmonary involvement which would have necessitated a chest x-ray. Dr. Levat also argues that since plaintiff is not challenging the jury's answer of "No" to verdict question 10(a) which asks whether Dr. Levat departed from good and accepted medical practice on January 11, 2010 by diagnosing Barbara Russo as being in "end stages of the flu," the plaintiff is conceding that there was sufficient evidence before the jury to support its finding that Dr. Levat was not negligent in diagnosing Ms. Russo with the end stages of the flu on January 11, 2010. Accordingly, the jury could not find that it was a deviation from good and accepted medical practice not to investigate a cardiovascular cause of Ms. Russo's symptoms since it was not a departure to diagnose her with the "end stages of the flu."In reply, plaintiff argues that while he is not challenging Drs. Morimoto and Jarvis's diagnosis of an allergic reaction and Dr. Levat's diagnosis of "end stages of the [*10]flu" he can still challenge whether it was a departure for Drs. Morimoto, Jarvis, and Levat not to investigate a cardiovascular cause for Ms. Russo's complaints. Plaintiff argues that the doctors' diagnoses and the failure to investigate a cardiovascular cause are two separate departures and can be analyzed as such.Discussion

The statute that governs a post-trial motion is CPLR 4404. CPLR 4404(a) provides in relevant part:

Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, 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 judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

The Court notes that upon its own initiative, pursuant to CPLR 4404, by letter dated June 18, 2014 it informed the parties that it was granting plaintiff a brief extension of time to submit this motion to June 24, 2014, if he was so inclined to make such a motion. Thereafter, plaintiff timely made this motion and defendants filed their opposition.

Missing Witness Charge With Respect to Dr. Morimoto

At the outset the Court acknowledges that it erred when it ruled that plaintiff's request for a missing witness charge was untimely.

The Court notes that throughout the trial, Dr. Morimoto's counsel indicated that she was going to testify. Plaintiff had intended on calling Dr. Morimoto as a witness but was informed that on either of the two days Dr. Morimoto was to be called she was unavailable due to her running the Boston Marathon and babysitter problems. Therefore, plaintiff rested without calling Dr. Morimoto. Plaintiff was not informed that Dr. Morimoto was not going to testify at trial until May 6, 2014 the second to last day of testimony. At the charge conference the next day, May 7th plaintiff requested a missing witness charge. At that time the Court indicated that it was denying that request as untimely. Plaintiff's counsel explained that the request was being made on May 7th because she was unaware that the doctor was not going to testify until the defense rested without calling Dr. Morimoto.

" A party seeking a missing-witness charge must promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify' " (Taveras v Martin, 54 AD3d 667, 863 N.Y.S.2d 475 [2nd Dept 2008] citing People v Gonzalez, 68 NY2d 424, 427 [1986]).

Here, plaintiff requested the witness charge promptly on May 7, 2014 after [*11]learning that Dr. Morimoto's counsel rested on May 6, 2104 and had not called Dr. Morimoto as a witness in her own defense.

In DeVito v Feliciano, 22 NY3d 159, 978 N.Y.S.2d 717 [2013], the Court of Appeals set forth the relevant law on the effect and preconditions of a missing witness charge:

An "uncalled witness" or "missing witness" charge instructs a jury that it may draw an adverse inference based on the failure of a party "to call a witness who would normally be expected to support that party's version of events" (People v Savinon, 100 NY2d 192, 196 [2003]). The charge, found in Pattern Jury Instructions at 1:75, advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury "may, although [it is] not required to, conclude that the testimony of [the witness] would not support [that party's] position on the question . . . and would not contradict the evidence offered by [the opposing party] on this question" (PJI 1:75). The jury is instructed that it "may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding" (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; see PJI 1:75).

The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the "control" of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party (see Savinon, 100 NY2d at 197; People v Macana, 84 NY2d 173, 177 [1994]; People v Gonzalez, 68 NY2d 424, 428 [1986]; see also e.g. Brueckner v Simpson, 206 AD2d 448 [2d Dept 1994]). Here, the defendants do not deny that their witnesses' knowledge was material, or that their relationship with the uncalled witnesses makes it natural to expect that the witnesses would testify in their favor; and they do not deny the uncalled witnesses' availability. Rather, defendants argue that the testimony of the uncalled witnesses would have been "cumulative of the plaintiff's treating physician and plaintiff's radiology expert," relying on Getlin. We reject, as a matter of law, defendants' analysis of whether the uncalled witnesses' testimony would have been cumulative.

The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the Third Department held that "one person's testimony properly may be considered cumulative of another's only when both individuals are testifying in favor of the same party" (id. at 92), noting that to hold "otherwise would lead to an anomalous result. Indeed, if the testimony of a defense physician who had examined a plaintiff and [*12]confirmed the plaintiff's assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge" (id.).

Accordingly, our holding is that an uncalled witness's testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.

* * *

In short, a witness's testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness's testimony.

The Emergency Room Defendants argue that Dr. Morimoto's testimony would be cumulative since her deposition testimony was read into the record and her medical records were placed in evidence. Further, they argue that Dr. Morimoto's testimony would be cumulative to that of Dr. Jarvis and Kathleen King the triage nurse since they all observed and treated Ms. Russo. The Emergency Room Defendants' arguments are without merit.

Plaintiff established entitlement to a missing witness charge for Dr. Morimoto. As a defendant in this case and one of Ms. Russo's treating physicians, Dr. Morimoto is knowledgeable about material issues in this case, her testimony would not be cumulative since she personally treated Ms. Russo and observed her in the absence of Kathleen King and Dr. Jarvis, she was available since she was in the courtroom for the majority of the trial and she would be expected to give testimony favorable to herself (see Devito v. Feliciano, 22 NY3d 159 [2013]).Defendants attempt to shift the burden to plaintiff to produce Dr. Morimoto; however, they do not cite a case to support the shifting of the burden.

In Brown v. City of New York, 50 ad3d 937, 938 [2nd Dept 2008] the Appellate Division Second Department held:

Contrary to the defendants' contention, the Supreme Court properly granted the plaintiffs' request for a missing witness charge with respect to the defendant Julio A. Torro, the driver of the vehicle that allegedly struck the van of the injured plaintiff Joe S. Brown. Torro, who at all relevant times was represented by counsel, and who had previously given deposition testimony, inexplicably failed to appear at the trial to testify. A jury may, but is not required to, draw the strongest inference that the opposing evidence permits against a party who fails to testify at trial (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]; Farrell v Labarbera, 181 AD2d 715, 716 [1992]; see also Noce v Kaufman, 2 NY2d 347, 353 [1957]).

"It is well settled that where one party to an action, knowing the truth of a matter in controversy and having the evidence in his possession, omits to speak, every inference against him warranted by the evidence may be considered." (Farrell v Labarbera, 181 AD2d 715, 581 N.Y.S.2d 226 [2nd Dept 1992]; see also Leven v. Tallis Dept. Store, Inc., 178 AD2d 466, 577 N.Y.S.2d 132 [2nd Dept 1991]["The trial court committed reversible error in refusing the plaintiffs' request for a missing witness charge (1 PJI 1:75) as to the defendant's employees and the co-owner of the defendant store, who were present in the store on the day of the accident. A party is entitled to a missing witness charge "where the uncalled witness bears information on a material issue, would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party (citations omitted)."]).

Based on the foregoing, plaintiff's motion to set aside the verdict with respect to Dr. Morimoto on the ground that the Court failed give a missing witness charge is GRANTED.

Motion to Set Aside the Verdict With Respect to Drs. Jarvis and Levat

The Court finds that the jury verdict with respect to the following Questions are against the weight of the evidence :

4(a) Did defendant Dr. Edward Jarvis depart from good and accepted medical practice by not investigating a cardiovascular cause for Barbara Russo?7(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice by not investigating a cardiovascular condition?

8(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice on January 7, 2010, by not sending Barbara Russo for a cardiac consultation?

11(a) Did defendant Dr. Jay Levat depart from good and accepted medical practice on January 11, 2010, by not sending Barbara Russo for a cardiac consultation?In Acosta v City of New York, 84 AD3d 706, 921 N.Y.S.2d 644 [2nd Dept 2011]), the Appellate Division Second Department stated, in relevant part:

A jury verdict in favor of a plaintiff should not be set aside as contrary to the weight of the evidence unless the evidence so preponderated in favor of the defendant that the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129 [1985]). In making this [*13]determination, the Court must proceed with considerable caution, "for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict" (Nicastro v Park, 113 AD2d at 133). Generally, "[f]act finding is the province of the jury," whose ability to see and hear the witnesses should be accorded deference (id. at 133-134).

Further, "[t]he court [can find] the verdict against the weight of the evidence when there is something about the case that arouses its suspicions and makes it uncomfortable, although it cannot say clearly that the results can go in only one direction." (Siegel, New York Practice, Fifth Edition, page 712).In Man v. Hunt, 283 AD 140, 141 [3rd Dept 1953], the Court eloquently explained:

Everyone would admit that there are circumstances in which a trial judge's duty may require him to set aside a verdict which is too high, too low, or so wrong that it will not stand. The judge, indeed, has the active and continuous burden of supervising the work of the juries which report to him. But he will not interfere just because he dislikes the verdict; or feels quite strongly he would have done something else; or even because he may think the verdict is unjust.

The point of interference is not fixed on the caprice of judicial individualism; it is rather arrived at by a synthesis of all the experience that the judge has had: in the beginning as a law student, in the later controversies of law practice, in the hearing of cases and the writing of decisions, in the sum of all that he has absorbed in the courtroom and in the library.

In the end it is an informed professional judgment; and although lawyers might differ greatly about how the components of the judgment are arranged and added up, there would be a very considerable agreement about the result to be reached in any case once the facts were thoroughly understood.

The problem presented by the term against the weight of evidence , indeed, is very similar in its implications to the problem of what the profession has meant by the word reasonable applied to private conduct or official act. Therefore, while the rule is not easily, or at all, capable of being laid down in plain words as an infallible guide to decision and can be illustrated only imperfectly by opinions in past cases, it is a rule which the profession understands as the cumulative product of its own experience.

A court which reviews the weight of evidence as well as the law, as does an Appellate Division, must approach an appeal from a decision by a trial judge setting aside a verdict in the light of the nature of the duty and the [*14]subtle and not easily definable measure of responsibility which the judge exercises in decision.

The duty of the judge to supervise the reasonableness of the verdicts returned to him ought to be viewed liberally on appeal because the independence of mind with which that duty is exercised is ingredient to the sound health of the judicial process. (Lipshitz v. Sloan, 280 App. Div. 855.)

Moreover, the Appellate Division Second Department has stated "[w]here the trial court is of the opinion, as it was here, that in weighing the evidence the jury has not appraised correctly its relative persuasiveness and probative force, the court is empowered to set aside the jury's verdict and to order a new trial (citations omitted)" (see Nassau-Suffolk Pet Supply v Ashdown, 22 AD2d 891, 255 N.Y.S.2d 393 [2nd Dept 1964]). That is the case here.

At the outset, the Court notes that at trial Dr. Jarvis testified Ms. Russo never complained of chest pain, however, the aftercare sheet which he completed indicates reason for visit as "unspecified chest pain." Further, Dr. Jarvis acknowledged that during his discharge discussion with Ms. Russo he recommended that she visit her primary care physician to have a cardiac stress test the next day. Yet despite this advice, Dr. Jarvis did not indicate that Ms. Russo had a differential diagnosis of cardiovascular cause. Nowhere in Dr. Jarvis's notes does it indicate that he even considered a cardiovascular problem. However, at trial Dr. Jarvis testified that a sudden onset of chest pain requires a doctor to consider a cardiovascular cause "in some context" (237, 246). Dr. Jarvis also acknowledged that diffuse chest pain can be consistent with a cardiovascular problem (362).

Moreover, the record is replete with evidence that when patients complain of chest tightness or squeezing it is considered a complaint of chest pain and when a patient complains of chest pain the first consideration is whether the patient is having a cardiovascular event. There is scant evidence that a cardiovascular event was considered by either Dr. Jarvis or Dr. Levat.

Notably, both Dr. Jarvis and Dr. Levat testified that when a patient complains of chest pain a cardiovascular event should be considered. Nevertheless, Dr. Levat testified that he did not rule out a cardiovascular cause for Ms. Russo's complaints (857). Moreover, Dr. Levat testified that it was "bad medically" if a patient experiences a sudden squeezing or tightness in the chest and a doctor does not think of a cardiovascular event (780-81).

Although, Dr. Levat testified that a cardiovascular event was always considered, his notes give no indication that such a cause was considered.

The Court notes further that Dr. Silberman who testified on behalf of Drs. Morimoto and Jarvis testified that there are many descriptive terms for chest pain including chest tightness and squeezing. Dr. Silberman testified that if a patient comes into the emergency room with complaints of chest pain a cardiovascular cause must be ruled out. Dr. Silberman testified that the failure to consider a cardiovascular cause would be departure from good and accepted medical practice.

Dr. O'Grady who testified on behalf of Dr. Levat also testified that patients often describe chest pain as being chest tightness. He also testified that the hallmark of an aortic dissection is the onset of sudden chest pain (2261). Further, the pain can radiate to the throat (2263-64). Dr. O'Grady testified that good and accepted medical practice dictates that an emergency room physician must rule out the worst possible conditions and if he or she does not, it is a departure from good and accepted medical care. Dr. O'Grady testified that a cardiovascular cause for Ms. Russo's continuing symptoms was required to be ruled out (2258, 2279). Dr. O'Grady noted that no where in Dr. Levat's notes does it indicate that Dr. Levat considered or ruled out a cardiovascular cause for Ms. Russo's symptoms (2268).Here, as in Nicastro "weighing the persuasive and consistent testimony of plaintiff's experts and the stark proof of the documentary evidence against the pro forma declarations of [defendants'] experts and the deference to be given the jury's reaction to what it saw and heard" (Nicastro, 113 AD2d at 138), this Court will set aside the verdict with respect to jury verdict questions Nos. 4(a), 7(a), 8(a) and 11(a). (see Reilly v Ninia, 81 AD3d 913, 917 N.Y.S.2d 652 [2nd Dept 2011]; Cicione v Meyer, 33 AD3d 646, 823 N.Y.S.2d 173 [2nd Dept 2006]["[Defendant] admitted during his testimony that, in accord with good and accepted medical care, the administration of Pitocin should have been discontinued once the uterine rupture was suspected, and it is undisputed that the Pitocin was not stopped at that time. As such, the jury's finding that Dr. Royek did not depart from good and accepted medical practice in his administration of Pitocin to the plaintiff could not have been reached upon any fair interpretation of the evidence (citations omitted."]).

Similarly, here the record is replete with references to Ms. Russo's continuing complaints of chest pain. Further, the weight of the credible evidence establishes that when a patient complains of chest pain a physician is required to consider and rule out a cardiovascular cause for the complaints. Yet, nowhere in the record is there evidence, other than defendants' own testimony, that a cardiovascular cause was considered by either Dr. Jarvis or Dr. Levat. Accordingly, the persuasive and consistent testimony mandates that this Court set aside the verdict with respect to jury questions Nos. 4(a), 7(a), 8(a) and 11(a)as against the weight of the evidence.

Based upon the foregoing, plaintiff's motion to set aside the verdict with respect to Dr. Morimoto is GRANTED and plaintiff's motion to set aside the verdict with respect to questions No. 4(a), 7(a), 8(a) and 11(a) is GRANTED. Plaintiff is entitled to a new trial with respect to Dr. Morimoto and verdict questions Nos. 4(a), 7(a), 8(a) and 11(a).

The parties are directed to appear in the Settlement Conference Part on October 29, 2014 room 1600 at 9:15 a.m. for further proceedings.

Dated: White Plains, New York

September 19, 2014

HON. WILLIAM J. GIACOMO, J.S.C.

Footnotes

Footnote 1:All page references are references to the trial transcript.

Footnote 2:The Court notes that although Dr. Moriomoto was present in the Courtroom every day of the trial, with the exception of one or two half days, she elected not to testify. Rather, portions of her deposition transcript was read into the record.