Orin v Nakao

[*1] Orin v Nakao 2009 NY Slip Op 52470(U) [25 Misc 3d 1237(A)] Decided on October 30, 2009 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2009
Supreme Court, New York County

Deborah Orin, a/k/a DEBORAH EILBECK, by the Executors of her Estate, JAMES NEVILLE EILBECK and MARK SLOTKIN, and JAMES NEVILLE EILBECK, individually, Plaintiffs,

against

Naomi Nakao, M.D., Defendant.



100138/07



212-732-8700

Alice Schlesinger, J.

This Court presided at a trial wherein the defendant doctor, Naomi Nakao was charged with failure to timely diagnose stomach cancer in her patient, Deborah Orin. Ms. Orin succumbed to her cancer in late December of 2006. The trial began on July 16, 2009 and concluded on July 27, 2009 with a unanimous finding by the jury of no malpractice.

The interrogatories submitted to the jury consisted of only two questions vis-a-vis liability but on one issue. The first question 1(a), regarding whether there was a departure, read as follows:

Did Dr. Naomi Nakao depart from accepted standards of gastrointestinal care by not performing a follow-up EGD on Deborah Orin within a reasonable time after May 27, 2004?

As indicated above, the jury answered "No" to this question. If they had answered "Yes", they still would have had to answer question 1(b) which dealt with causation. That was another significant issue in this case, an issue the jury never reached.

After the panel returned its verdict, counsel for plaintiff orally moved to set it aside (although he indicated that he also would be making a written motion, which was agreeable to the Court). He argued that the interrogatory given to the jury was wrong and prejudiced his client. He urged that the substance of the alleged deviation was not the failure to do a follow-up EGD, the question asked, but rather the failure to do a biopsy.

I reserved decision anticipating a written motion, and that is what is now before the Court. Now, in a more formal presentation, counsel is moving pursuant to CPLR §4404 to set aside the verdict and to order a new trial. Once more, he complains about the "flawed" interrogatory which was presented to the jury. He urges that the question asked was "totally inconsistent with the deviation expressed by plaintiffs' medical experts and further inconsistent with the evidence."

Specifically, counsel claims that the question had two problems. The first related to asking about a follow-up EGD rather than a biopsy. The second related to the use of the word "reasonable" in the phrase "within a reasonable time." [*2]

Defense counsel strongly opposes the motion. He does it by arguing first, waiver. He points to the statement by plaintiffs' counsel Mr. Mondora made on the record at the charge conference held on July 24, 2007. At that time, in response to my inquiry of both counsel whether the interrogatory proposed by the Court was acceptable (the same one ultimately used by the Court), Mr. Mondora answered "It is okay, Judge". Based on that exchange, defense counsel now argues that plaintiffs waived any and all objections to the interrogatory.

Defendant also argues on the merits that the interrogatory was fair and appropriately communicated to the jury what the case was about; that is, Dr. Nakao's alleged failure to do a follow-up EGD (esophago-gastro-duodenoscopy) after a biopsied specimen from the outer curvature of Ms. Orin's stomach, taken on May 27, 2004, had been lost.

Discussion

While it is true that moving counsel acceded to the liability question at the charge conference, I find it would be unfair to decide this motion on the basis of waiver. In fact, during a long discussion at the charge conference, before objections were preserved for the record, Mr. Mondora did argue vigorously that the question should include a follow-up biopsy rather than a follow-up EGD. But I believed otherwise and attempted to explain why the interrogatory I had proposed was the more balanced approach. Thus, it did come as some surprise that when we did go on the record, he accepted the question and did not state his arguments.

Further, and as pointed out in his Reply, on the following day before summations and charge, on the record this time, Mr. Mondora brought up again the wording of the interrogatory. He restated his position that it was the word "biopsy" that should be used, rather than "EGD". I overruled this objection again, restating why I believed the interrogatory should read as it did.

On the use of the word "reasonable", Mr. Mondora was asked at the charge conference whether he wanted a specific time put in the question, such as 6 weeks, but he declined this offer. None of this colloquy was preserved. I find no waiver by counsel with regard to the wording of the interrogatory which used "follow-up EGD" instead of "follow-up biopsy". Rather, I do find, under all the circumstances here, that the plaintiffs' objection was timely preserved.

However, on the merits, I believe the question submitted was fair and equally important, consistent with the evidence. The plaintiffs called two experts to give testimony on liability. The first was Dr. Steve McClain, a pathologist. The second was Dr. William Bisordi, a gastroenterologist, the same speciality as that practiced by Dr. Nakao. It should be noted that after the EGD of May 27, 2004 and the lost specimen, no follow-up EGD was done until June 2005. At that time, according to Dr. Nakao, there was no longer a gastric ulcer and her patient was asymptomatic.

A major issue in the case was when the cancer was first present and diagnosable. By August 2006, it had grown enormously and had already metastasized. There was also testimony that gastric ulcers were matters of concern and had to be explored via biopsies because they could be signs of cancer or of a premalignant condition. Therefore, all the [*3]doctors agreed that Dr. Nakao was right in doing a biopsy of the gastric ulcer in May 2004.[FN1]

But since the specimen was lost and no report was prepared, the issue was what should then be done. There was no definitive record as to what Ms. Orin was told and whether she was asked to come in for another test. And of course Ms. Orin, who had died from the cancer, never gave testimony on this point.

But whatever was said to Ms. Orin, it was undisputed that no follow-up exam, with or without a biopsy, was done until June 2005, some 13 months later. Therefore, the question posed was whether such a failure to have that follow-up much closer in time to May 2004 was negligent. However, I explained that I could not include in the question "biopsy" because that would be taking a non-neutral position vis-a-vis the evidence. The plaintiffs' experts believed that a follow-up EGD would have shown an ulcer which then could and should have been biopsied. But the defense experts stated their opinions that it was likely from the results of later tests that the ulcer had healed. Furthermore, and significantly, if it had healed, there was no clear opinion expressed by either doctor called by the plaintiffs that a biopsy should then have been done.

In this regard, Dr. McClain was asked as part of his direct examination (p 369 lines 20-25 of the transcript) if he had an opinion whether it was a deviation from good practice not to have redone a biopsy of the ulcer before June 2005. He stated he did not understand the question. So it was restated with the following question and answer (p 370 lines 3-10):

Q.Was it a deviation for Dr. Nakao not to redo the EGD, which included taking a specimen, for at least one year from May 2004 to June 2005?

A.It appears from the record that the symptoms were still there. I don't know. This is a kind of statement I have probably the most personal difficulty with, but, yes, I think it does represent a deviation. I think not following up is a deviation.

Therefore, Dr. McClain limited his response regarding a deviation to "not following up." The interrogatory was consistent with this testimony.

With regard to plaintiff's second expert, Dr. Bisordi, on his direct examination (pp 477-78), he gave his opinion that the stomach cancer had begun in 2004 with the ulcer on the greater curvature. He then stated what he believed were two deviations from accepted standards by the defendant. He said the following:

A.The basis for my opinion is the fact that this ulcer - I was trying to explain before, but didn't get a chance to finish, so I'll finish now.

The ulcer was not fully evaluated back in 2004. She saw the ulcer, saw it on the greater curvature, the greater curvature-ulcers tender (sic) to be, have a tendency to have more malignant potential. She looked at that ulcer, took one biopsy, apparently, did not take multiple biopsies, and therefore, that was a deviation from the accepted standard, [*4]number one.

And her failure to have the patient return in six or so weeks to make certain that ulcer healed is a second deviation.

Therefore, again the interrogatory given to the jury was consistent with the expert testimony. Dr. Bisordi said nothing about a second biopsy.

When I suggested the interrogatory to the attorneys, I wanted to make sure it was in line with the testimony (it was), and was balanced as well. As I explained on the record the morning of the charge, July 27, 2009, no one really knew if the ulcer would have still been present if there had been a follow-up in approximately six weeks. If it was still there, then arguably a biopsy would and should have been done. But it would have been improper for the Court to assume the continued presence of the ulcer, because that issue was hotly disputed between the experts for the parties. Therefore, the interrogatory submitted to the jury was, I believe, the best that could be given in light of the testimony and the positions argued by counsel.

Accordingly, it is hereby

ORDERED that plaintiffs' motion to set aside the verdict is denied, and the Clerk may proceed to enter judgment on the verdict.

Dated: October 30, 2009

___________________________

J.S.C.

Attorney for Plaintiff

Michael Smith

Michael Steven Smith & Associates

30 Vesey Street, 15th fl.

New York, NY 10007

212-732-8705

Attorney for Defendant

Larry Mumm, Esq.

McAloon & Friedman, P.C.

123 William Street, 25th fl.

New York, NY 10038

212-732-8700 Footnotes

Footnote 1:There was testimony from plaintiffs' experts that multiple biopsies should have been taken and it was a departure not to have done so. However, counsel for plaintiffs made it clear he did not want such a question put to the jury.