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Dombrowski v. Moore11/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
Defendant appeals from a judgment of Supreme Court, Erie County (Dillon, J.), entered September 15, 2000, upon a jury verdict awarding plaintiff $500,000 for past pain and suffering and $600,000 for future pain and suffering.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the award of damages and as modified the judgment is affirmed without costs and a new trial is granted on damages for past and future pain and suffering only unless plaintiff stipulates to reduce the verdict to $200,000 for past pain and suffering and $400,000 for future pain and suffering, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.
Memorandum:
Plaintiff commenced this medical malpractice action seeking damages for injuries that he sustained as a result of an esophageal tear that occurred during a procedure performed by defendant in which plaintiff's esophagus was dilated. In 1993 plaintiff was experiencing difficulty in swallowing and was referred to defendant for treatment. Defendant performed a routine dilation of plaintiff's esophagus and, by gradually increasing the size of the dilator, stretched plaintiff's esophagus to a size of 52 Fr Maloney bougie tube (Fr). After that procedure, defendant informed plaintiff that a second procedure one year later would be needed. When plaintiff received notification one year later that the second procedure should be scheduled, he informed defendant and employees at (*2)the hospital where the first procedure had been performed that he was asymptomatic. The second procedure was nevertheless performed, despite the fact that plaintiff had no strictures or other esophageal problems. During the second procedure, defendant began with a size 42 Fr dilator but immediately increased the size to 52 Fr. When the size 52 Fr dilator was placed in plaintiff's esophagus, plaintiff felt "tugging" and immediate discomfort. Hours after the procedure plaintiff returned to the emergency room at the hospital where the procedure had been performed, and it was discovered that his esophagus had been perforated.
Plaintiff underwent an emergency surgery known as a fundoplication, which involved wrapping a portion of his stomach tissue around his esophagus to block any leakage. One of plaintiff's ribs had to be removed in order to perform the surgery, and plaintiff was in extreme pain for days following the surgery. After the fundoplication plaintiff suffered from "gas bloat syndrome." He could no longer eat a lot of solid food, he was in pain and discomfort after eating, and he suffered from constant burping and flatulence. Plaintiff was no longer able to work as he had before the surgery because he had to rest for long periods of time, and he was unable to participate in activities that he previously had enjoyed, such as fishing. Medication was not successful in alleviating plaintiff's symptoms, and thus in 1997 plaintiff underwent surgery known as a pyloroplasty to reduce the effects of the gas bloat syndrome. That procedure had only a minor effect in alleviating plaintiff's symptoms.
The jury found that defendant was negligent in moving from a size 42 Fr dilator to a size 52 Fr dilator during the second procedure and that such negligence was a proximate cause of plaintiff's injuries. Plaintiff was awarded $500,000 for past pain and suffering (covering 6 years) and $600,000 for future pain and suffering (covering 20 years).
We reject the contention
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