 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Harris v. Parwez12/2/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MEMORANDUM AND ORDER
Calendar Date: October 13, 2004
Appeal from an order of the Supreme Court (Monserrate, J.), entered June 13, 2003 in Otsego County, which granted plaintiff's motion to set aside a verdict in favor of defendant and granted a new trial.
In this medical malpractice action, the jury answered the following question in the negative: "Has the plaintiff, Wendy Harris, sustained her burden of proving that the manner in which defendant, Dr. Khalid Parwez, performed a laparoscopy on her on November 23, 1998 deviated below the standard of reasonably acceptable medical care?" Supreme Court, determining that the evidence so preponderated in plaintiff's favor that this verdict could not have been reached on any fair interpretation of the evidence, granted plaintiff's motion to set the verdict aside and for a new trial. Defendant appeals.
"'In determining if a jury verdict should be set aside, the question is whether there is sufficient evidence to support the verdict and, if so, whether the evidence on the whole so preponderates in favor of the losing party that the verdict could not have been reached on any fair interpretation of the evidence'" (King v Jordon, 265 AD2d 619, 619-620 , quoting Santalucia v County of Broome, 228 AD2d 895, 896 ; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 ). With these principles in mind, we turn to the record. To perform plaintiff's laparoscopy, defendant first inserted a veress needle, at 90 degrees, through the center of her umbilicus so that carbon dioxide could be introduced into the abdominal cavity to enlarge it for easier viewing through the laparoscope. Next, after making a small incision near the lower edge of the umbilicus, he inserted, using a "z" technique, a second sharp instrument known as a trocar, which serves as a sleeve for the laparoscope so that the patient's lower abdomen can be viewed. At a point approximately beneath the umbilicus, the abdominal aorta bifurcates forming the common iliac arteries and these vessels carry blood from the heart to the extremities. Adjacent to the abdominal aorta is the vena cava which carries blood from the extremities back to the heart. It also bifurcates near where the aorta bifurcates and the left common iliac vein running down the left leg passes beneath the right common iliac artery running down the right leg. Plaintiff's current physician is treating her for an obstruction in the right common iliac artery and a blockage in the left common iliac vein.
Plaintiff introduced evidence attempting to prove three separate acts of malpractice, namely, first, that defendant negligently cut plaintiff's abdominal aorta and vena cava with the trocar, second, that defendant punctured plaintiff's right common iliac artery and left common iliac vein with the veress needle, and third, that defendant was negligently responsible for a 37-minute delay after a "code blue" was called before emergency surgery commenced during which time plaintiff lost almost her entire blood supply.
Although the Pattern Jury Instruction committee recommends that all claimed departures be itemized on the verdict sheet (see 1A PJI3d 651 ), where, as here, a single question was asked and answered in defendant's favor, the verdict should be set aside if the evidence so preponderates in plaintiff's favor on any theory (cf. Davis v Caldwell, 54 NY2d 176 ).
No one disputes that emergency surgery was performed to save plaintiff's life. The location of that surgery, however, was greatly disputed. Both plaintiff's expert witness and defendant's expert witness
Page 1 2 3 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|