Mathieu v. State (N.Y.App.Div. 12/13/1999)

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Supreme Court12/13/1999 Argued - November 5, 1999 OPINION OF THE COURT In a claim to recover damages for personal injuries and wrongful death, the claimant appeals, on the ground of inadequacy, from a judgment of the Court of Claims (Collins, J.), dated August 26, 1998, which, after a non-jury trial, and upon dismissing the claims to recover damages for medical malpractice and wrongful death, is in favor of the claimant and against the defendant only in the principal sum of $12,000. ORDERED that the judgment is affirmed, without costs or disbursements. The determination of the court, which credited the testimony of the defendant's medical expert that the decedent's death was the result of coronary artery disease and was not related to the defendant's negligence in administering an antibiotic to which the decedent was allergic, was based upon a fair interpretation of the evidence and was not against the weight of the credible evidence (see, Thoreson v Penthouse Intl. Ltd., 80 NY2d 490; McCray v Petrini, 212 AD2d 676). Accordingly, the claim to recover damages for wrongful death was properly dismissed. The award of $12,000 for conscious pain and suffering represents reasonable compensation under the circumstances (see, CPLR 5501 ). The allergic reaction to the ampicillin administered to the decedent consisted of a skin rash of short duration and one to two days of shortness of breath, the latter of which was not attributed solely to the allergic reaction. The claimant's remaining contentions are without merit. S. MILLER, J.P., O'BRIEN, McGINITY, and FEUERSTEIN, JJ., concur.

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