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Lipschitz v. Stein9/13/2004
This opinion is uncorrected and subject to revision before publication in the Official Reports.
DECISION & ORDER
(Index No. 47446/98)
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Jackson, J.), entered July 23, 2002, as, upon a jury verdict, and upon an order of the same court dated October 24, 2002, which denied their motion pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the defendant Arnold J. Stein and against them dismissing the complaint insofar as asserted against that defendant.
ORDERED that the judgment is reversed insofar as appealed from, on the law, the complaint is reinstated insofar as asserted against the defendant Arnold J. Stein, the motion is granted, a new trial is granted with respect to the that defendant, with costs to abide the event, and the order is modified accordingly.
The issue before the jury was whether the defendant Dr. Arnold J. Stein (hereinafter the defendant) committed malpractice which constituted a proximate cause of Menachem Lipschitz's loss of his left eye due to endophthalmitis, an infection of the vitreous humor of the eye. The defendant performed a cataract operation upon Mr. Lipschitz's left eye on November 10, 1997. Before the operation, the defendant applied Betadine, an antimicrobial solution, around the eye to avoid infection. After the surgery he placed a collagen shield soaked in cortisone and tobramycin over the eye.
The morning after the surgery, November 11, 1997, Mr. Lipschitz, suffering extreme pain, went to the defendant's office for a post-operative office visit. The defendant treated Mr. Lipschitz for high eye pressure which he assumed was related to his glaucoma. When the defendant's treatment failed, he sent Mr. Lipschitz to the hospital at approximately 1:45 P.M. An initial examination at the hospital showed no light perception in the left eye and exploratory surgery confirmed "extremely aggressive endophthalmitis" requiring the evisceration of the eye on November 13, 1997.
Several theories of malpractice were submitted to the jury, which found, inter alia, that the defendant did not deviate from accepted standards of medical care in failing to administer broad spectrum antibiotics by injection at the end of the cataract surgery, that the defendant did not fail to see Mr. Lipschitz from approximately 9:00 A.M. until approximately 10:45 A.M. in his office on the day following the surgery, and that the defendant's failure to diagnose endophthalmitis during that office visit was not a departure from accepted medical practice. We find that there were errors committed at the trial which could have affected the verdict and therefore cannot be considered harmless (see Garricks v City of New York, 1 NY3d 22, 27).
According to the plaintiffs' expert witness at the trial, the defendant deviated from the standard of care when he failed to inject a broad spectrum antibiotic into the conjunctiva underneath the eye immediately after the surgery, and the failure to do so was a substantial factor in causing permanent injury to the eye, requiring its evisceration.
To refute the testimony of the plaintiffs' expert that failure to inject antibiotics immediately after the surgery was a deviation from the standard of care, the defendant's infectious disease expert testified, over the plaintiffs' objection, that an injection of antibiotics immediately after surgery "would not have made any demonstrable difference." The defendant's counsel asked "Why i
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