DECISION/ORDER The defendant moves for an order pursuant to CPLR ’4404(a) setting aside the jury’s verdict in favor of the plaintiff and directing judgement in favor of the defendant or in the alternative setting aside the jury’s verdict and directing a new trial or in the alternative setting aside the verdict and ordering a new trial on the issue of pain and suffering damages unless the plaintiff stipulates to a reduction of the jury’s award. This is an action sounding in medical malpractice. On February 6, 2024 the jury rendered a verdict in favor of the plaintiff, awarding $6,100,000 in damages for pain and suffering. On August 29, 2017, the plaintiff decedent underwent an ablation procedure at Bellevue Hospital to repair an atrial fibrillation. He returned to the hospital approximately two weeks later on September 14, 2017 complaining of chest pain. A chest CT scan was performed that day and the plaintiff was admitted to the hospital. A heart attack was ruled out and it was believed by the medical team that the plaintiff was suffering from pericarditis. On September 21, 2017 the plaintiff was found in his room on his knees suffering extreme chest pain. A CT scan conducted on September 22nd revealed what appeared to be a fistula between the esophagus and the pericardium. Immediate surgery to repair the fistula was performed by Dr. Jessica Donnigton that same day. During the procedure the plaintiff decedent’s atrium ruptured requiring further surgery by Dr. Misamoto to repair. Following this surgery the plaintiff decedent suffered reduced blood flow to his right leg and on September 28th a right leg above the knee amputation was performed. During that procedure the plaintiff decedent “slid” off the table as he was not properly secured. The plaintiff underwent numerous other surgical and medical interventions related to his fistula surgery as well as the amputation, until his death on November 16, 2017. The plaintiff’s decedent commenced this action for medical malpractice alleging, inter alia, that the defendant departed from accepted medical practice by failing to properly diagnose an atrio-espophageal fistula on admission to the hospital. In this regard the plaintiff alleges that the failure to perform proper diagnostic testing was a substantial factor in causing the plaintiff’s death. According to the plaintiff’s expert, Dr. Koumjian, in order to properly rule out an esophageal perforation when the plaintiff was admitted to the hospital, a CT scan with dye should have been performed. Moreover according to the testimony of Dr. Haber, plaintiff’s expert radiologist, the CT scan taken on September 14th indicated that there was evidence of air in the area between the esophagus and the pericardium. Further testing, including an MRI, was necessary to determine the extent of the injury and the failure to perform such test was a deviation from accepted medical practice. Dr. Koumjian testified that he believed that there was a micro perforation in the esophagus at the time of the admission to the hospital. In opposition to this testimony the defendant’s experts argued that the initial CT report did not indicate the presence of a fistula or the presence of any air in the area between the esophagus and pericardium. The plaintiff was improving during his admission and that the fistula spontaneously developed on September 21, 2017. In sum, they contend that there was no departure from accepted medical practice in the treatment of Mr. Flores at the time of his admission or throughout his time in the hospital. The defendant moves to set aside the verdict pursuant to CPLR ’4404(a) on the basis that the evidence presented by the plaintiff was insufficient to support the verdict. Specifically they contend that the testimony of Dr. Koumjian has no reliability because his testimony was not based upon facts in the record. Because Dr. Koumjian totally disregarded the medical records to reach his conclusion his testimony should be disregarded and the case dismissed or a new trial ordered. In order to set aside a jury verdict on the basis that the evidence was legally insufficient the court must find that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (Cohen v. Hallmark Cards, Inc. 45 N.Y.2d 493). A court should not set aside a jury’s verdict where “the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon” (Id). In considering whether to exercise its discretionary power to order a new trial based on errors at the trial the court must decide whether substantial justice has been done, whether it likely that the verdict has been affected and must look at its own common sense of fairness rather than precedents in arriving at its decision (Lariviere v. New York City Transit Authority 131 A.D.3d 1130). In order to establish the liability of a physician for malpractice a plaintiff must prove that the physician deviated from accepted community standards of practice and that such departure was a proximate cause of the plaintiff’s injuries (Bacchus-Sirju v. Hollis Women’s Center 196 A.D.3d 670). Expert testimony is generally necessary to prove a deviation from accepted standards of medical care and to establish proximate cause (Id). The opinions offered by an expert witness must be based on facts in the record or personally known to the witness (Hambsch v. New York City Transit Authority 63 N.Y.2d 723). An experts testimony that is conclusory, speculative and based largely on hindsight reasoning is insufficient to establish a claim for malpractice (Ortiz v. Wyckoff Heights Med. Ctr 149 A.D.3d 1093). Of course where conflicting expert opinion is offered the jury is entitled to accept one expert’s opinion and reject that of another expert and its resolution of the conflicting testimony is entitled to great weight (Martinez v. Coca-Cola Refreshments USA, Inc. 187 A.D.3d 1170; see also Luna v. Spadafora 127 A.D.3d 933). Here the defendant argues that the testimony of Dr. Koumjian was not based upon facts in the record and that he failed to reconcile the facts that were inconsistent with the basis for his opinion. The defendant maintains that the Doctor’s testimony was predicated upon proof in the records that the plaintiff’s condition worsened between the time of his admission and the discovery of his fistula. However the record directly contradicts this testimony as all indications point to an improvement of his condition over the week he was admitted. The defendant claims that Dr. Koumjian opined that further testing was necessary for the plaintiff due to a worsening condition as the hospital stay progressed. The defendant asserts that by all measures the plaintiff’s records indicate improvement. They claim that the doctor relied on the ultimate diagnosis of an esophagael pericardial fistula to work backward and opine that the fistula was detectable upon admission to the hospital and should have been diagnosed. They further argue that the doctor’s testimony with respect to the claim that the failure to adequately secure the plaintiff to the operating during the amputation procedure caused the defendant to suffer cardiac arrest was wholly inadequate. According to the testimony the doctor never explained how sliding off the table as opposed to the earlier fistula surgery caused the cardiac event. They urge the Court to disregard the testimony of Dr. Koumjian and direct a verdict in their favor or in the alternative to order a new trial. In opposition the plaintiff contends that Dr. Koumjian testified that the defendant deviated from accepted medical standards by failing to include a dye swallow during the CT conducted upon admission to the hospital. He opined that the dye would have enabled a radiologist to determine if there was a perforation in the esophagus. Moreover the Doctor opined that given the complaints made by the plaintiff decedent in the days following admission further studies should have been conducted. Plaintiff further claims that the defendants fail to address the Doctor’s other departures including, the failure to diagnose the injury after initial presentation at the hospital, failure to perform other imaging studies after September 14 and the failure to repeat CT scan with contrast on September 15 in light of the continuing symptoms. The defendant also fails to challenge Dr. Koumjian’s testimony that it was his opinion that there was a micro perforation present on September 14. The defendants also do not address the opinion from Dr. Haber that the imaging studies on September 14 show a perforation and air in the mediastinum. This testimony conflicted with that of the defendant’s expert Dr. Alpert. The motion to set aside the verdict is denied. There was sufficient evidence offered by the plaintiff decedent to establish a claim for malpractice. The jury was free to accept the expert opinions of the plaintiff’s decedents doctors and to reject the expert opinions offered by the defendant (Cicola v. County of Suffolk 120 A.D.3d 1379). Moreover, a successful party is entitled to a presumption that the jury adopted a reasonable view of the evidence (Id). This court cannot say as a matter of law that there is no valid line of reasoning by which the jury could come to the conclusion it reached. The testimony of Dr. Haber, which the jury apparently believed, demonstrated that the imaging study on September 14 revealed open air outside of the esophagus. He opined that there was a micro perforation present at the time. At the very least the defendant should have performed further studies to rule this out. Assuming that the defendant is correct with respect to the testimony regarding Dr. Koumjian, there is sufficient testimony offered by Dr. Haber to substantiate a claim for malpractice. The motion for a directed verdict or for a new trial is therefore denied. The defendant moves in the alternative to reduce the judgment as excessive. They claim that an award of $6.1 million dollars for pain and suffering is excessive. The plaintiff contends that based upon the approximately two months of constant conscious pain experienced by the plaintiff decedent the award is fair and reasonable. According to the Plaintiff, Mr. Flores underwent more than thirty five separate invasive surgical procedures at the hospital during his two month stay. Pursuant to CPLR §5501 (c) a jury award is excessive if it deviates materially from what would be considered reasonable compensation (see, Weigl v. Quincy Specialties Co. 190 Misc.2d 1 [although CPLR §5501 is phrased as directive to Appellate Court, it is equally applicable to trial courts]). In order for the court to determine whether a jury award deviates from what would be considered reasonable compensation the Court is required to look to similarly appealed verdicts (Donlan v. City of New York 284 A.D.2d 13). When comparing injury and awards it is incumbent upon the Court to consider not only the type of injury and the level of pain, but the period of time for which that pain is being calculated (Garcia v. Queens Surface Corp. 271 A.D. 2d 277). In determining the reasonableness of damages for conscious pain and suffering between injury and death, the Court considers the injured person’s degree of consciousness, the severity of pain, the individual’s awareness of the dire circumstances and the duration of the individual’s suffering (In re 91st St. Crane Collapse Litig. 154 A.D.3d 139). Both sides concede that the cases they have cited in support and in opposition to modifying the jury award for conscious pain and suffering are not the same as the facts and circumstances related to the case at bar. The Court has reviewed many of the cases as well as others not included to reach its conclusion with respect to an appropriate award. The defendants argue that the award deviates materially from what could be considered reasonable compensation and cites to the following cases to support the contention. In Small v. City of New York (213 A.D.3d 475) the Court reduced an award for conscious pain and suffering from $8 million to $2.75 million. It is not clear from the decision the amount of time that this compensation covered. In addition the Court reduced the award for fear of impending death from $8 million to $500,000 for a period lasting several hours to two days. In Stewart v. New York Hospital Queens (214 A.D.3d 919) the Court sustained an award of $1.3 million in damages for pain and suffering lasting 18 days after a finding that the hospital failed to diagnose his condition and discharging the plaintiff decedent. In Bacchus-Sirju v. Hollis Women’s Ctr. (196 A.D.3d 670) the court sustained a verdict awarding $2 million for pain and suffering for a period of over four years in failing to properly diagnose and treat decedent’s ovarian cancer. Although not delineated in the decision the defendant contends that the award for conscious pain and suffering was for approximately 4 and one half years. In Capwellv. Muslim (80 A.D.3d 722) the Court sustained an award of $3 million for conscious pain and suffering for what the defendant claims was eleven months of pain and suffering, although, again, that time frame is not mentioned in the decision. The last case cited by the defendant is Mancuso v. Kaleida Health (172 A.D.3d 1931) in which the Appellate Court affirmed $1 million dollars awarded to the 81 year old plaintiff decedent for conscious pain and suffering for a period of approximately 7 weeks. In opposition, the plaintiff contends that the jury award of $6.1 million dollars for conscious pain and suffering represents fair and reasonable compensation for the injuries sustained by plaintiff decedent. In support of this argument the plaintiff relies on two cases. In Lee v. New York Hospital Queens (118 A.D.3d 750), the Appellate Court sustained a verdict of $3.75 million for conscious pain and suffering to the plaintiff decedent for conscious pain and suffering over a four day period. In Lee, the plaintiff decedent was admitted to the hospital with an inflamed gallbladder requiring surgery to remove it the day following admission. Surgery was not performed for two days. The plaintiff decedent eventually developed sepsis and died four days after admission. The hospital admitted liability and a trial on damages was held. The jury awarded, inter alia, the sum of $5 million for conscious pain and suffering for the four days the plaintiff decedent was in the hospital. The trial court reduced the damages to $3.75 million. In In re 91st Street Crand Collapse Litigation (154 A.D.3d 139), the Appellate Court reduced an award of $8 million in conscious pain and suffering to $5.5 million for approximately seven minutes of conscious pain and suffering. A co-plaintiff in the case had his verdict for four hours pain and suffering reduced from $24 million to $7.5 million. The last case relied upon by the plaintiff involved a settlement in a case from the U.S. District Court in the Eastern District. In Polanco v. City of New York (19-CV-4623), the City of New York settled an action involving an inmate who suffered a fatal epileptic seizure while incarcerated. For just a few minutes of pain and suffering the case settled for $5.9 Million. This case in not necessarily dispositive here as it involves a settlement and not the amount sustained after Appellate review (see, Rosenblatt v. Center for Nursing & Rehabilitation 70 Misc.3d 1220(A) [Sup. Ct. Kings]; Smith by and through Lundy-Smith v. Northern Manhattan Nursing Home, Inc. 70 Misc.3d 891 [Sup. Ct. NY]). While admittedly none of the cases cited by either party directly bear on the facts as found in this case, the Court takes into consideration the awards sustained by the Appellate Courts. Notably, the awards in the Small, Baccus-Sirju and Lee cases are beneficial to this Court in determining the fair and reasonable compensation to be awarded. It is clear that the plaintiff decedent here suffered significant pain and suffering during his approximate two month hospital stay, especially for the six weeks after the surgery to repair his fistula. The pain he was suffering was supported by the testimony of the various family members who testified. During the six week period prior to his death Mr. Flores underwent dozens of surgical and medical procedures to address his condition. At the time prior to his death Mr. Flores had an open chest incision that was required to treat his condition. During his hospital stay he had his leg amputated, he had a pacemaker implanted, he had his wounds debrided several times and was fed through a feeding tube. A video played to the jury, taken shortly before his death, demonstrated that Mr. Flores was aware of his surroundings. Based upon all of the above, taking into consideration awards sustained by the Appellate Courts, as well as the length of time the plaintiff experienced pain and suffering coupled with his awareness of his condition, the Court finds that the award of $6.1 million is excessive. An award of $4 million is more in line with what would be considered reasonable and fair compensation for the damages sustained by the plaintiff decedent. Therefore the Court will, in the exercise of its discretion, order a new trial on damages unless within 30 days after entry of this order the plaintiff stipulates in writing to a reduction in the award from $6.1 million to $4 million. Accordingly the defendants motion to set aside the verdict is denied with respect to that portion of the motion which seeks to set aside the verdict as against the weight of the evidence and is granted with respect to that portion which seeks to set aside the damage award. A new trial on damages will be held unless within 30 days after service of this order with notice of entry, the plaintiff stipulates in writing to a reduction of the award to $4 million. This shall constitute the decision and order of the Court. Dated: July 8, 2024
