Rivera v Jothianandan

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[*1] Rivera v Jothianandan 2011 NY Slip Op 52540(U) Decided on December 2, 2011 Supreme Court, Bronx County Friedlander, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2011
Supreme Court, Bronx County

Yanina Rivera, an infant by her mother and natural guardian, Carmen Hernandez, Plaintiffs,

against

K. Jothianandan, M.D., Defendant.



350665/07

Mark Friedlander, J.



Defendant Kanthimathi Jothianandan, M.D. ("KJ") moves this Court for an order: 1) Setting aside the jury verdict rendered against it and directing judgment in favor of defendant; or, in the alternative: 2) Setting aside the jury's verdict and directing a new trial on the issues of liability and damages, or, in the alternative: 3) Setting aside the jury's verdict as to damages, dismissing the claim for future medical expenses, and directing a new trial on the issue of other damages awarded by the jury, unless plaintiff stipulates to a substantial reduction in such damages, or in the alternative: 4) Ordering a hearing for the purposes of taking collateral source reductions pursuant to CPLR 4545, and structuring a judgment pursuant to CPLR Article 50-A.

The trial of this medical malpractice action was held before the undersigned in May 2011. Plaintiff, who was several weeks shy of her seventeenth birthday at the time of trial, brought this action against KJ as a result of a doctor's visit which occurred on March 21, 2005, when plaintiff was ten. Her mother had brought her and her older brother to see KJ, who diagnosed both as suffering from a stomach virus, and sent them home with instructions consistent with such [*2]diagnosis. Plaintiff's brother thereafter recovered without incident, but plaintiff became more ill two days later, and, on the evening of March 23, 2005, was brought by her mother to the Bronx Lebanon Hospital emergency room and diagnosed with acute appendicitis.Hospital personnel determined that plaintiff's appendix had ruptured and that she required emergency, open abdominal surgery. The ruptured appendix had caused peritonitis. Her hospital stay lasted six days, during at least part of which, her abdominal wound was draining, and she was catheterized. After her release from the hospital, and most likely as a result of the catheterization, she had to return for a brief re-hospitalization just over two weeks later, when she was diagnosed with a urinary infection. Because her appendicitis was diagnosed after the appendix had burst, she could not have had her appendix removed laparoscopically, which would have been a significantly easier procedure to tolerate.

Plaintiff, through her mother and natural guardian, sued KJ, alleging that KJ departed from good and accepted medical practice by failing to diagnose plaintiff's appendicitis on March 21st. KJ's defense included the assertions that KJ's examination of plaintiff was properly done, that it is difficult to tell, in the early stages, whether appendicitis is present or about to be present, that the diagnosis was entirely proper given the symptoms plaintiff manifested at the time, and that, in any event, there is insufficient proof that plaintiff has appendicitis as of March 21st.

During the trial, the jury heard testimony from KJ, who was called by plaintiff, and then from plaintiff, her mother and her brother. In addition, the jury heard the opinions of plaintiff's expert witness, a pediatrician, and defendant's expert witness, a specialist in pediatric infectious diseases. After plaintiff rested, defendant, with the Court's consent, reserved the right to move for dismissal, so as to accommodate defendant's expert, who was waiting to testify. Thereafter, defendant moved for dismissal, for failure to present a prima facie case, and also moved, in the alternative, to dismiss any claim for future damages. The Court reserved judgment on both motions, allowing the matter to go to the jury, but indicating that the motion could be renewed in the instant form, as a post-trial motion, to the extent necessary.

The jury, after brief deliberation, rendered a verdict which found liability on the part of KJ, and awarded $ 500,000 in past pain and suffering ("PPS"), two million dollars in future pain and suffering ("FPS") and $ 80,000 in future medical expenses. Counsel had already stipulated that, if there were a verdict in favor of plaintiff on liability, the amounts awarded would automatically include $ 19,000 in past medical expenses, which was the conceded cost of plaintiff's 2005 treatment. Thus, the entire award which is now subject to this motion totals: $ 2,599,000.

A subsidiary issue which arose during the trial related to the cross-examination of defendant's expert by plaintiff's counsel. Plaintiff's counsel suggested that the expert has rendered an opinion on behalf of, and in favor of, another plaintiff with similar claims. The thrust of the cross-examination was that such opinion would have been in conflict with the expert's direct testimony at the instant trial in support of defendant. The expert repeatedly stated that he did not recall the other action, then stated that, to the extent any details read to him by plaintiff's counsel sounded familiar, the expert still could not recall which side retained him. [*3]

Over objection by KJ's counsel, the cross-examination continued with plaintiff's counsel inferring that the expert had been retained by plaintiff's side in that other proceeding. After the expert had departed, KJ's counsel was able to ascertain that his expert had in fact consulted only for defendant in the other action, and thus had rendered no opinion in conflict with his testimony here. Defendant's counsel moved for a mistrial, but that motion was denied. A curative instruction was given to the jurors, who were told that there was some confusion as to which side had consulted the expert in the other case, and that the jurors were therefore to ignore all testimony on that subject.

In the post-trial motion, defendant's counsel continues to insist that the jurors were necessarily tainted by the improper discrediting of the opinions of the defense expert, and that this is sufficient basis for setting aside the verdict. The Court does find that plaintiff's counsel has shown no basis whatsoever for inferring in front of the jury that the defense expert had once testified for a plaintiff, let alone a good faith basis for such inference. The actions of plaintiff's counsel in this regard were patently improper. Nevertheless, the Court believes that the curative instruction given to the jury was sufficient to overcome any prejudice suffered by defendant. Thus, the incident was not a basis for declaring a mistrial at the time it occurred and cannot serve as a basis for setting aside the jury's verdict. In view of the other conclusions reached herein, however, this point is rendered moot.After reviewing all of the evidence presented as to the possible liability of defendant, the Court concludes that, as a matter of law, plaintiff failed to make out a prima facie case of medical malpractice on the part of defendant, and that, in any event, the jury's verdict must be set aside as against the weight of the evidence. The only basis for a jury finding that there were departures from good and accepted medical practice in this case would have had to come from plaintiff's expert. KJ certainly did not concede that she committed malpractice. Nor did the defense expert think that any malpractice occurred. The only other witness who was qualified to tell the jury that departures occurred was plaintiff's expert, and his testimony, taken in its entirety, was insufficient to support that conclusion.

In the first instance, plaintiff's expert provided insufficient evidence to establish that plaintiff was suffering from appendicitis at the time that KJ examined her. Under cross-examination, the expert allowed that, although possible, it was "unlikely" that plaintiff did NOT have appendicitis on March 21st. On re-direct, he gave the reason for his supposition by stating that, by the time plaintiff came to the emergency room, the process had been going on for some time. Nevertheless, the expert never dealt with the fact that more than two days had elapsed between KJ's diagnosis and the presentation to the emergency room. The expert never quantified what "some time" meant, or could mean. In fact, according to the testimony of plaintiff's mother, plaintiff had begun to experience stomach pain only the night before her morning visit to KJ, so that plaintiff was initially diagnosed at the very beginning of a process which thereafter took more than four times longer to be seen as a ruptured appendix.During his testimony, plaintiff's expert conceded that children can, and often do, proceed from having no indications of appendicitis, all the way to having a burst appendix with peritonitis within periods as short as twelve hours. He also acknowledged that ordinary stomach viruses can sometimes go [*4]on to precipitate appendicitis. The expert did not rule out that this could have happened here, but rendered opinions that reflected his belief that plaintiff was suffering from appendicitis on March 21, without giving a clear reason for such opinion. In fact, his main support for his conclusion seemed to stem from his ire at what he considered the too brief notations made by KJ during her physical examination of plaintiff. This fixation on the written notations, to the exclusion of considering the actual testimony of KJ as to her memory of the physical examination she performed and as to her findings, will be dealt with in greater detail, infra. However, without more specific quantification by the expert in support of the basis for his conclusions regarding the time at which plaintiff developed appendicitis, his inferences as to plaintiff's condition at a given hour six years earlier are mere speculation.Further, plaintiff insists that her expert testified to KJ's malpractice for failing to perform a whole host of tests. What is not mentioned in plaintiff's papers, however, is that the premise for the departures cited by the expert was an erroneous one. The expert went through a whole array of symptoms which he claimed should have prompted extra testing by KJ. However, as to many of those symptoms, evidence was lacking that they were present or that they showed up in a meaningful fashion. Thus, the basis for the expert's opinion was not the actual condition of plaintiff as such condition emerges from the evidence.

With regard to the key symptoms mentioned, there was adduced insufficient proof that such indicia really existed. The most quantifiable is the supposed fever. Clearly, a higher fever makes it more likely that the infection of appendicitis is present than that a more common stomach virus is the culprit. KJ found plaintiff's temperature to be under 100, which is not considered febrile for medical purposes. The presence of so low a fever would in fact be more indicative of a virus than appendicitis. Plaintiff's mother could not recall her daughter's fever from the night before the visit to KJ, but conceded it might well have been below 100. Thus, there is no indication that plaintiff presented with fever, despite the fact that this factor formed a significant part of the basis for plaintiff's expert's opinion as to the need for further testing. By contrast, it should be noted that, when plaintiff's expert described fever as a symptom of appendicitis, he immediately qualified it by adding "high grade fever." (T. 353).Plaintiff's counsel also framed the questioning of his expert around the symptom of vomiting, without qualifying the frequency or severity of this symptom. Here, too, the evidence as adduced is simply too weak to support the notion that "vomiting" as a symptom necessarily should have played a large role in the diagnosis. When plaintiff's mother was asked at trial how plaintiff seemed from the time she got sick on the night of March 20, to the time she saw KJ the next day, she described a child with stomach ache, and lack of appetite. She did not mention vomiting. When asked specifically later on if plaintiff had been vomiting, she could not recall. Nor did she recall any vomiting when she testified at her deposition, which was closer to the date of the illness. KJ's own notes show that plaintiff's mother described "vomiting and diarrhea" since the night before, but diarrhea was not described during trial as a particular symptom of appendicitis (as opposed to generic stomach viruses) and there is no indication as to whether the vomiting had occurred more than once. KJ did note that plaintiff was not dehydrated. By contrast, when plaintiff's expert later referred to vomiting as a symptom of more than a simple illness, he described it as severe enough to lead to dehydration. (T.339). [*5]

Although KJ's chart, as noted supra, refers to the mother's mention of vomiting, it is conceded that, during the three hour wait in KJ's office, plaintiff did not vomit. Nor did she vomit during her exam, or, according to her brother's account, on the way home. If plaintiff spent most of March 21 without vomiting, and her mother cannot remember her vomiting the night before, there clearly is a problem with eliciting an expert opinion based on the symptom of "vomiting." Children can occasionally vomit, especially if they have a stomach virus, but to alert a physician to the possibility of appendicitis, the symptom of vomiting would need some quantification or characterization that would establish it as meaningful for the purpose of the questioned diagnosis.

Plaintiff's questions to the expert focused repeatedly on "severe stomach pain," but plaintiff's mother, when questioned about her daughter's condition, as compared to her previous stomach aches, stated that the symptoms of March 20-21 were "a little more severe." This description, as a matter of common sense, does not rise to the level of the type of pains that the expert testified would support claims of an emerging illness which KJ should have diagnosed.

In total, plaintiff's expert seems most offended at what he considers KJ's inadequate documentation of her examination, and he builds most of his comments around this. However, it is clear that the sparse documentation, even if inadequate, was not a cause of plaintiff's injuries. It may have made it more difficult for KJ to defend her actions, but it did not, in and of itself, harm plaintiff in any way. KJ testified that she performed an adequate physical examination in her normal manner, but plaintiff's expert testified repeatedly that there was no documentation that some step in the exam was done. From that premise, the expert went on to assume that the particular examination was not done, and that KJ was therefore negligent. This, however, is entirely speculative. It is undeniable that the physical palpitation of plaintiff's abdomen was the single most critical part of the exam. KJ was present at the exam which she performed, while plaintiff's expert was not. For the expert to assume that the exam was faulty merely because the documentation is sparse constitutes, once again, too speculative a conclusion.Plaintiff's counsel attempted to persuade the jury that KJ was negligent by not ordering a blood test, or by not sending plaintiff for an MRI or CT Scan. However, there is no evidence that this is routinely done for patients who present with plaintiff's symptoms, when the physical examination elicits no indication of appendicitis. In fact, were this the mandated standard, hospitals would be full of patients with mere stomach viruses. In effect, plaintiff's counsel misled the jurors into believing that the standard of care required these tests even in the absence of physical findings which justified them. Plaintiff's expert enabled this misdirection of the jury by acknowledging the value of these tests, using the assumption that there would have been physical findings justifying these tests. The latter assumption was based totally on the further assumption that KJ could not have done a thorough physical examination, merely because she did not document in writing each step of the exam. The statements presented to the jury were thus assumption built upon assumption, and inherently unjustifiably speculative.

It must be conceded that KJ herself made a terrible witness. There appeared to be language difficulties, which, if not based on an inadequate English language vocabulary, were at the very least based on a sharp difference in the way KJ pronounced English words and [*6]understood their pronunciation. KJ was an immigrant from India and was trained in medical school there. There also was a cultural gap, and KJ clearly felt more ill at ease being confronted by hostile questioning than most American physician-defendants. She was at times argumentative and/or tearful. Plaintiff's counsel now argues that KJ acknowledged that plaintiff presented with a whole host of symptoms that are not otherwise supported in the record (such as fever), but the Court's observation of that exchange between KJ and her questioner was that KJ was somewhat confused as to the responses expected of her and as to the nature of the questions. (T.82). The totality of KJ's testimony makes clear that the symptoms presented to her did not rise to the level suggested in that interchange.It is fairly clear that KJ did not make a very good impression on the jury, and that the impression left by the very likeable and intelligent teenage plaintiff could not have been better. The jury took less than an hour to deliberate over the difficult issue of diagnosing appendicitis, as discussed by KJ and two medical experts over five days. Their brief deliberation included discussion of past and future damages, after which they awarded $80,000 for damages which were totally unproven, two million dollars for damages as to which there was scant proof, and $500,000 for an open appendix surgery. While not claiming that this was a classic "runaway" jury, the Court still notes the likelihood, given all the circumstances and the timing, that this was a verdict determined solely by sympathy and not by a consideration of evidence, in violation of the instructions given to the jurors. Nevertheless, the instant Decision is based — not on any supposition of what may have transpired in the jury room, although it is appropriate to note these factors for the record - but rather on what the proof did or did not show at trial.

For the reasons cited, it is the conclusion of this Court that the jury's verdict was rendered against the weight of the credible evidence. Further, the Court finds that plaintiff's evidence was insufficient, as a matter of law, to present to the jury. A decision was made to present it to the jury, despite defendant's timely motion to dismiss, so that, if an appellate court should disagree with these conclusions, a jury verdict would still be preserved, avoiding a second trial.

The above conclusion renders moot the portions of the motion addressing damages, but the Court will decide those issues for the purpose of completeness. The damages awarded for future medical expenses were completely unsupported by evidence, as plaintiff's own expert stated repeatedly that he could not truly quantify what these costs might be. He finally came up with "several hundred" dollars annually, but this figure is meaninglessly vague, especially coming after his repeated disclaimers as to his knowledge of the subject. Further, it is not even clear that any medical expenses will be incurred in the future, over and above what a normal person, without plaintiff's issues, might expend. The jury's award of $80,000 is thus not only unsupported, but, frankly, inexplicable. It is also far more than the $10,000 to $20,000 that plaintiff's counsel requested in closing.This amount would have to be set aside, even if liability were to be found.The damages for FPS are also unsupported. Testimony established that, because plaintiff's burst appendix was discovered on March 23, after it had caused abdominal infection, plaintiff required an open abdominal surgery, rather than the more limited laparoscopic surgery. There has been no evidence that plaintiff continues to suffer in any way from the effects of this surgery. She does have one slightly larger surgical scar, instead of three very small laparoscope scars. The scar is in a place not normally visible to others. Further, although plaintiff's expert spoke of the possibility of plaintiff [*7]developing internal adhesions at some future point, the testimony merely indicated this might happen, not even that it was particularly likely. There can be many causes of abdominal adhesions, and even the laparoscopic procedure could admittedly cause them, albeit perhaps smaller ones. The entire subject of possible adhesions in the future is entirely speculative and cannot support any damage award, let alone one for two million dollars. Although it can be argued that no future damages have been proved at all, the Court, on balance, if liability had been upheld, would order a new trial on damages unless plaintiff consented to reduce the FPS award to $ 50,000.Finally, the Court finds the award of $ 500,000 for PPS to be excessive as well. If one were to assume that KJ committed malpractice by failing to timely diagnose plaintiff's appendicitis, the damages would be limited to the difference between the appendicitis treatment which plaintiff would have received as of March 21, and the treatment that was made necessary by delaying diagnosis until March 23. Obviously, regardless of KJ's actions, plaintiff would have suffered from appendicitis and her appendix would have been removed.Clearly, there are differences between a laparoscopic appendix removal prior to the bursting of the appendix, and the open surgery done when some degree of peritonitis is already present. The days-long hospital stay, the draining of pus, and the healing of a larger incision, all might have been avoided by earlier treatment. Further, the surgery presumably precipitated plaintiff's later hospital treatment for a urinary infection, because of her catheterization during her first hospital stay, while recovering from surgery. By all accounts, though, plaintiff is now in very good health, and doing well, and she achieved that status shortly after the month or two in which she suffered the appendicitis and its relatively brief aftereffects. After early April 2005, there were no further procedures or sequellae, related to the issues raised here.The cases cited by plaintiff to support the jury verdict for PPS invariably involve injury and suffering more extensive than that which occurred here. The focus at trial on plaintiff being frightened when facing surgery is somewhat overblown, as children of that age would normally fear any procedure, and, indeed any need to be in a hospital setting. It is not clear from the testimony that plaintiff would have taken much greater comfort from being told that only a laparoscopy was needed. In any event, the treatment rendered, as unpleasant as it may have been, represented only a short deviation from what was otherwise a healthy and trouble-free childhood and adolescence.Under the circumstances, this Court concludes, on balance, that if liability had been upheld, a new trial on damages would be ordered unless plaintiff consented to reduce the PPS award to $250,000.Defendant's post-trial motion is therefore granted and the jury's verdict is set aside, on the ground that plaintiff has failed, as a matter of law, to make out a case of medical malpractice against defendant KJ, and on the further ground that the jury's verdict finding such medical malpractice is against the weight of the evidence. The claims of plaintiff herein are therefore dismissed. Further, for the sake of completeness, it is noted that, had there not been a setting aside of the verdict as to liability, a new trial on damages would have been ordered unless plaintiff consented to an award of zero dollars for future medical expenses, an award of $50,000 for future pain and suffering, and an award of $250,000 for past pain and suffering.This constitutes the Decision and Order of the Court.

Dec 2, 2011/s/

Dated: ____________________________________MARK FRIEDLANDER, [*8]J.S.C.

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