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Vito v. North Medical Family Physicians3/18/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is reversed on the law with costs, the motion is denied, the complaint is reinstated and a new trial is granted in accordance with the following Memorandum: Plaintiff commenced this medical malpractice action alleging that defendants were negligent in various aspects of their treatment of his lower back injury. We agree with plaintiff's contention that Supreme Court erred in granting defendants' motion for a directed verdict at the close of plaintiff's proof. Plaintiff established through expert testimony that the failure of defendant Louis Bonavita, Jr., M.D. to refer him to a specialist from 1996 to 2000 was a departure from good medical practice and that the longer a herniation exists, the worse the prognosis. Plaintiff also established that Dr. Bonavita negligently prescribed narcotics and failed to keep proper records, which led to plaintiff's addiction and subsequent withdrawal. Plaintiff's expert testified that Dr. Bonavita's record-keeping deviated from acceptable medical care because it is unclear what narcotics plaintiff was prescribed from 1996 to 2000. Based on his review of plaintiff's medical records, the expert further opined that plaintiff suffered from an addiction to Oxycontin. Plaintiff sought treatment from a hospital emergency room for withdrawal symptoms due to his use of that narcotic, and Dr. Bonavita's notes reveal that plaintiff complained to defendants that he had withdrawal symptoms. Upon viewing the evidence in the light most favorable to plaintiff, we conclude that there is a rational process by which the jury could have found that Dr. Bonavita was negligent in failing to refer plaintiff to a specialist to determine the cause of his pain after 1996, in failing to keep proper business records and in prescribing and continuing plaintiff on Oxycontin, and that negligence caused plaintiff's damages (see generally Szczerbiak v Pilat, 90 NY2d 553, 556). We therefore reverse the judgment, deny defendants' motion for a directed verdict, reinstate the complaint, and grant a new trial before a different justice.
All concur except Hurlbutt, J.P., and Smith, J., who dissent in part and vote to modify in accordance with the following Memorandum: We respectfully dissent in part. The majority concludes that Supreme Court erred in granting in its entirety defendants' CPLR 4401 motion for a directed verdict at the close of plaintiff's proof. In our view, however, the court properly granted that part of defendants' motion with respect to plaintiff's claim of malpractice based on the failure of defendant Louis Bonavita, Jr., M.D. to refer plaintiff to a specialist between the years 1996 and 2000. Plaintiff's expert medical witness testified that Dr. Bonavita "deviated from the prevailing standard of care" because, inter alia, he did not "timely refer [plaintiff] to a specialist for further evaluation," and he further testified that plaintiff's "outcome would have been much better if it was more of a timely referral." On cross-examination, however, plaintiff's expert medical witness admitted that he could "only speculate" whether plaintiff needed or would have undergone surgery had he been referred to a specialist between the years 1996 and 2000, and he could likewise "only speculate" what the outcome of such surgery would have been. Viewed in the light most favorable to plaintiff, the nonmoving party, that testimony does not provide "any rational basis upon which a jury could have fou
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