Valenzuela v Wyckoff Hgts. Med. Ctr.

[*1] Valenzuela v Wyckoff Hgts. Med. Ctr. 2012 NY Slip Op 51917(U) Decided on October 3, 2012 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2012
Supreme Court, Kings County

Yamilette Genesis Valenzuela, an infant by her mother and natural guardian, NERSY VALENZUELA, and NERSY VALENZUELA, individually, Plaintiffs,

against

Wyckoff Heights Medical Center, MARTIN ASARE ANIM, M.D., WYCKOFF EMERGENCY MEDICINE SERVICES, P.C., and NEW YORK PRESBYTERIAN HOSPITAL , Defendants



13861/05



Attorney for plaintiff: Sullivan Papain Block McGrath & Cannavo, P.C., 120 Broadway, New York, New York 10271 212-732-9000

Attorney for defendant Martin A. Anim, M.D., 81 Main Street, Suite 400, White Plains, New York 10601 914-448-0200

(case was dismissed against Wyckoff Heights Medical Center and Wyckoff Emergency Medicine Services, P.C.)

Marsha Steinhardt, J.

The following papers numbered 1 to 3 read on this motion

Papers Numbered

Notice of Motion-Order to Show Cause and

Affidavits (Affirmations) Annexed1

Answering Affidavit (Affirmation)2

Reply Affidavit (Affirmation)3

Affidavit (Affirmation)

Pleadings-Exhibits [*2]

Stipulations-Minutes

Filed Papers

Plaintiffs move for an Order pursuant to CPLR §4404 (a) setting aside the jury's verdict against plaintiffs as being against the weight of the evidence. It is the contention of the moving party that the evidence adduced at trial does not serve as a rational basis for the jury's verdict. Defendants Martin A. Amin, M.D. and Wyckoff Emergency Medicine Services, P.C. oppose the motion.

Now, upon the foregoing papers and upon oral argument on August 13, 2012 and due deliberation had thereon the plaintiff's motion is GRANTED.

The above captioned matter was tried before the undersigned and a jury commencing on April 4, 2012 and a jury rendered a verdict in favor of the defendants on April 18, 2012. This is an action sounding in medical malpractice wherein it is claimed that defendant Dr Anim, an emergency room physician, failed to admit 5 week old Yamilette Valenzuela when she was brought to the emergency room at Wyckoff Heights Medical Center on January 23, 2004. Plaintiff also claimed that Dr. Amin failed to order a chest x-ray on that date which would have indicated inflamation of the small airways. Plaintiff claimed that these departures proximately caused the infant to sustain neurological injury as a result of the ensuing respiratory distress treated at a subsequent hospital admission.

An Ambulance Call Report admitted in evidence indicates that on January 19, 2004 Yamilette was taken to Wyckoff Heights Medical Center after her mother witnessed the infant "start coughing and turn purple." The hospital triage record notes "c/o coughing and difficulty breathing while feeding had a choking episode, [no loss of consciousness]." Dr. Amin examined the 38 day old infant, ordered a chest x-ray which was negative and diagnosed her with an upper respiratory infection. The infant was discharged home.

Four days later, on January 23, 2004, Yamilette was again taken to Wyckoff Hospital via ambulance. The emergency room record indicates that "Mom stated baby choked turned blue after feeding...5 wk old female returning to ER since Tuesday. C/o cough and possible asphyxiation - states problem began 1 wk ago (baby appeared with dyspnea). Give saline drops, CXR negative. States today producing white + green phlegm..." Dr. Amin evaluated the infant and discharged her home.

On January 25, 2004, the infant was again brought in to the Emergency Department at Wyckoff Hospital after she turned "black and purple." At the hospital she experienced an episode where she was suddenly unable to breathe and had to be intubated due to respiratory failure. The infant was transferred to Columbia Presbyterian Hospital and ultimately diagnosed with Respiratory Syncytial Virus (RSV). Yamilette remained intubated and on a feeding tube for most of her hospital stay of over a month.

During examination by plaintiff's counsel, Dr. Amin agreed that the signs and symptoms of RSV can be transient. Further, Dr. Amin testified that RSV also presents itself as starting out as what appears to be a cold. (T.78:21). A diagnosis of RSV can be made by swabbing the inside of an infant's nose. Dr. Amin conceded that the record indicated that on January 23,2004 the infant sustained a second episode of turning blue, a worsening sign of a cold with the production [*3]of green and white phlegm and experienced dsypnea (shortness of breath) and choking. Dr. Amin agreed that cyanosis and difficulty breathing are signs of RSV and that cyanosis could be intermittent and still be consistent with RSV. (T. 114:24) Dr. Amin testified that he did not consider RSV in his differential diagnosis. ( T. 73:18; 107:4).

Plaintiff called Dr. Karen Santucci, a physician board certified in Pediatric Emergency Medicine, to offer expert testimony in this case. Dr. Santucci testified that it was a departure to discharge the infant from the hospital on January 23, 2004 in light of the infant's history and presenting signs and symptoms. (T.153:1-25; 154:1-9). Dr. Santucci also opined that it was a departure on the part of Dr. Amin to not have ordered a lung x-ray on January 23, 2004. Dr. Santucci testified that, based on the presenting signs and symptoms on January 23, 2004, had an x-ray been taken on that date, the film would have shown involvement of the lungs, requiring the infant to be admitted. (T.178:16). Dr. Santucci testified that there would have been evidence of peribronchial cuffing which is evidence of inflamation of the small airways. Peribronchial cuffing by definition requires that a 35 week old infant be admitted to the hospital. Dr. Santucci reviewed x-rays subsequently taken on January 25, 2004 which revealed hyperinflation and peribronchial cuffing. Dr Santucci testified that "not even based on the25th, but based on the 23rd, her presenting signs and symptoms, her production of phlegm, her presentation, having had another apparent life threatening event, I believe, that without knowing the 25th, that on the 23rd there would have been something on the x-ray" which required that the infant be admitted. (T.178:16-25, 22-24) These departures, she opined, were a substantial cause of injury to Yamilette. She testified that had the infant been admitted on January 23rd she could have received oxygen treatment, positive pressure ventilation, hydration, monitoring and support to prevent respiratory failure. Dr. Santucci added that had the infant been admitted she would not have progressed to respiratory failure. (T. 179:3-8).

Defendant's expert Irving Zoltan, M.D., a physician board certified in Pediatrics, conceded that a worsening severe cough is a potential sign of RSV. Dr. Zoltan admitted that the infant's cough worsened from January 19th to the time of the second ER visit on January 23rd. Dr. Zoltan conceded that difficultly breathing can be a sign of RSV and that the record notes that the infant presented with difficulty breathing. (T.526:16-20). Dr. Zoltan conceded that dyspnea or shortness of breath as evidenced by rapid breathing would typically be an accompaniment of RSV infection and that the record indicates that the infant appeared dyspneic and became breathless. (T.528-531). Dr. Zoltan conceded that the infant was diagnosed with RSV at a subsequent hospital. (T.517:18-19). Dr. Zoltan agreed that the infant, when presented to the emergency room on January 23, 2004, "may be in trouble with breathing." (T.536:19). Nevertheless, when asked whether discharging the baby with potential breathing problems on January 23, 2004 would be a departure from good and accepted medical practice, Dr. Zoltan opined that it would not be a departure to discharge the baby on that date. (T. 536:21-25).

Dr. Zoltan was subsequently asked to assume he saw the infant, examined the baby and found everything that Dr. Amin found. Further, he was asked to assume that chest x-rays were taken on January 23rd with findings consistent with the findings on the films of January 25, 2004. Dr. Zoltan was then asked whether he would discharge the infant from the hospital. He replied "I can't say that I would definitely send the baby home or not send the baby home." (T.540:1-2). He added that he might watch the baby in the emergency room for a few hours to see if the baby [*4]developed any signs of respiratory distress. When pressed he said, "I'm not sure what I would do. I would have to see the baby and examine the baby myself." (T.540:16-17). In the end, Dr. Zoltan could not answer whether he would discharge the infant, instead he said, " I can't make something on paper my own assessment without looking at the baby and watching the baby breathe, talking to the mother, looking at the interaction with the mother." (T.541:22-25).

CPLR §4404 (a) confers the right to set aside a jury verdict as a matter of law or to order a new trial when the verdict is contrary to the weight of the evidence. The Courts of this state however, recognize the sanctity of the jury room and are reluctant to set jury verdicts aside. "A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" Exarhouleas v Green 317 Madison,LLC, 46 AD3d 854, 855 (2d Dept 2007); Cicione v Meyer, 33 AD3d 646 (2d Dept. 2006). It is for the jury to make a determination as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses. Bertelle v New York City Tr. Auth., 19 AD3d 343 (2d Dept 2005); Corcoran v People's Ambulette Serv., 237 AD2d 402, 403 (2d Dept 1997). The discretionary power to set aside a jury verdict and order a new trial must be exercised 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 129, 133 (2d Dept 1985).

The standard for determining whether a jury verdict is contrary to the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence. Beck v. Westchester County Health Care Corp., 72 AD3d 714 (2d Dept.2010); Reilly v. Ninia, 81 AD3d 913 (2d Dept.2011); See, Lolik v. Big V Supermarkets, 86 NY2d 744, 746; Nicastro v. Park, at 134 . The trial court's disposition of a motion to set aside the verdict as contrary to the weight of the evidence is entitled to great respect. See, Nicastro v. Park, at 137.

Here, Dr. Amin admitted that the infant presented to the emergency room on January 23, 2004 exhibiting signs and symptoms of RSV. Yet, he also admitted that he did not consider RSV as a differential diagnosis on that date. Dr. Amin's expert, Dr. Zoltan, testified that he would ultimately not be able to comment on the decision to discharge the infant unless he had been there, in the emergency room, to see the baby. Although, at times, he opined that the discharge was within the standard of care, ultimately he could not give an unequivocal opinion as to whether Dr Amin's decision to discharge the infant and his claimed failure to order x-rays on January 23, 2004 were deviations from accepted medical practice. The defendant's own expert's opinion was against the interest of the doctor and in effect favored the plaintiff's case. See, Reilly v. Ninia, 81 AD3d 913, 916- 917 (2d Dept. 2011).

Furthermore, both medical experts, ultimately were in accord as to the prudency of keeping five week old Yamilette in, at minimum, the emergency room for observation. This is testimony the jurors could not ignore. The experts agreed that earlier intervention on January 23, 2004 would have been beneficial. The severity of the child's condition was obvious two days after the first alleged departure on January 23rd necessitating a prolonged hospital stay and requiring intubation.

In conclusion, the jury's finding that Dr. Amin did not depart from good and accepted medical practice in his decisions to discharge the infant plaintiff and to not order x-rays on [*5]January 23, 2004 could not have been reached upon any fair interpretation of the evidence. The verdict is, therefore, set aside and a new trial on liability and damages is ordered. Both parties are directed to appear at the Medical Malpractice Trial Readiness Part on October 24, 2012 to obtain a new trial date.

Entered,

HON. MARSHA L. STEINHARDT

J.S.C.