Opinion
CA 03-00062
July 3, 2003.
Appeal from a judgment of Supreme Court, Oneida County (Grow, J.), entered March 13, 2002, which dismissed the complaint upon a jury verdict of no cause for action.
ROBERT E. LAHM, PLLC, SYRACUSE (ROBERT E. LAHM OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (MARY KENDRICK-GAFFNEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiffs appeal from a judgment dismissing their complaint for medical malpractice on the basis of a jury verdict of no cause for action. The complaint alleged that, in reading the mammogram of Cindy Lee Wilson (plaintiff), defendant Marvin W. Kushnet, M.D., a board-certified radiologist, negligently failed to diagnose breast cancer.
Contrary to plaintiffs' contention, Supreme Court's instruction on the standard of care was proper and, in particular, "correctly set forth the rule enunciated by the Court of Appeals in Toth v. Community Hosp. ( 22 N.Y.2d 255, 262; see also, PJI 2:150)" with respect to the appropriate community standard of care for a physician ( Mayer v. Oswego County Ob-Gyn, 207 A.D.2d 985, 986; see generally Nestorowich v. Ricotta, 97 N.Y.2d 393, 398; Pike v. Honsinger, 155 N.Y. 201, 209). The court also properly denied plaintiffs' motion to set aside the verdict as against the weight of the evidence ( see CPLR 4404 [a]). Such relief should not be granted unless the preponderance of the evidence in favor of the plaintiffs is so great that the verdict could not have been reached upon any fair interpretation of the evidence ( see Kuncio v Millard Fillmore Hosp., 117 A.D.2d 975, 976, lv denied 68 N.Y.2d 608; see also Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 745-746). The conflicting expert testimony presented issues of fact and credibility, and we decline to disturb the jury's resolution of those issues ( see Radish v. DeGraff Mem. Hosp., 291 A.D.2d 873, 874; Gallmeyer v. Sullivan, 245 A.D.2d 1024; McClain v. Lockport Mem. Hosp., 236 A.D.2d 864, 865, lv denied 89 N.Y.2d 817; Mayer, 207 A.D.2d at 986). The verdict is one that reasonable jurors could have rendered on the basis of the conflicting expert testimony ( see Petrovski v. Fornes, 125 A.D.2d 972, lv denied 69 N.Y.2d 608; Kuncio, 117 A.D.2d at 976).