Summary
upholding a jury award in a malpractice action, over claims that the evidence of proximate cause was lacking, because the trial testimony allowed the jury to find that the defendants' failure to act caused "additional pain and suffering"
Summary of this case from Milano by Milano v. FreedOpinion
June 12, 1989
Appeal from the Supreme Court, Nassau County (Velsor, J.).
Ordered that the cross appeal is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.20 [d], [f]; Cooper v. Bosse, 85 A.D.2d 616); and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Because causation is always a difficult issue in a medical malpractice case (see, Matott v. Ward, 48 N.Y.2d 455, 461-462; Mertsaris v. 73rd Corp., 105 A.D.2d 67, 82), "it bears emphasizing that to establish a prima facie case a plaintiff need not eliminate entirely all possibility that a defendant's conduct was not a cause. It is enough that he offer sufficient evidence from which reasonable men might conclude that it was more probable than not that the injury was caused by the defendant" (Mertsaris v. 73rd Corp., supra, at 83). In a wrongful death case the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give evidence (see, Noseworthy v. City of New York, 298 N.Y. 76, 80) and is entitled to the benefit of every favorable inference which can be reasonably drawn from the evidence in determining whether a prima facie case has been made out (Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126).
The appellants do not deny they committed medical malpractice in failing to treat the plaintiff's decedent's symptoms following her admission to their emergency facilities. Instead, they claim that the evidence supported a finding that this failure did not cause her to suffer additional pain and suffering. However, the jury was not bound to accept the appellants' expert's testimony that the treatment they provided alleviated the decedent's pain. The plaintiff's expert testified that the decedent was severely dehydrated upon admission and this condition was not properly treated. While the experts did not testify as to the extent that this failure increased the plaintiff's decedent's pain and suffering, the jury did not need such expert testimony but could use their "common sense and good judgment" and draw on "their common knowledge and general experience" (Paley v. Brust, 21 A.D.2d 758). Pain and suffering could be reasonably inferred from the medical evidence presented, as well as the fact that the husband testified that he observed his wife in pain following her admission to the Nassau County Medical Center (see, DeLong v County of Erie, 89 A.D.2d 376). Therefore, it cannot be said that there is simply "no valid line of reasoning and permissible inferences" to support the jury's conclusion that the defendants' malpractice caused the decedent further pain and suffering up to the time of her death (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499).
Moreover, the jury's determination as to causation with respect to the pain and suffering cause of action was supported by a "fair interpretation of the evidence" (Nicastro v. Park, 113 A.D.2d 129, 134). Mangano, J.P., Bracken, Kunzeman and Eiber, JJ., concur.