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Veeder v. Community Health Plan3/15/2001
rom appendicitis, as confirmed by Singh's postoperative pathological examination, and immediate emergency surgical intervention was appropriate. In addition, decedent suffered from salpingitis, an inflammation of the fallopian tube, for which she received a course of antibiotics. Gouge also refuted Davidson's testimony concerning the source of the emboli that caused decedent's death. In Gouge's opinion, decedent did not have a perinephric abscess, and the emboli originated in decedent's pelvic veins and not her renal or kidney veins. Finally, defendants presented compelling evidence that on September 11, 1991, decedent expressed no complaint of shortness of breath, thereby eliminating the basis for Davidson's opinion that decedent should have been seen by a physician at the time of her September 11, 1991 visit. In our view, the evidence presented by defendants provided a legally sufficient basis for the jury's determination, which was not against the weight of the evidence.
To the extent that they may be preserved for our consideration, we reject plaintiff's contentions that Supreme Court erred in its supplemental charge to the jury and in using a general verdict form. The supplemental charge correctly instructed the jury that its determination as to whether defendants engaged in "acceptable medical practice" was to be determined from the expert medical testimony and not from the juror's own personal beliefs (see, Schrempf v State of New York, 66 NY2d 289, 295-297; Perkins v Kearney, 155 AD2d 191, 192-193). Further, the holding of the Court of Appeals in Davis v Caldwell (54 NY2d 176) has no reasonable application in a case resulting in a defense verdict. Plaintiff's remaining contentions are not preserved for our consideration.
Cardona, P.J., Crew III, Spain and Mugglin, JJ., concur.
ORDERED that the judgments and order are affirmed, with costs.
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