Opinion
4713/04.
Decided July 23, 2008.
Upon the foregoing papers in this action by plantiff Kern Dehaarte (plaintiff) to recover damages for personal injuries based upon claims of medical malpractice and lack of informed consent, defendant Max L. Ramenovsky, M.D. (defendant) moves, after trial, for an order, pursuant to CPLR 4404(a): (1) setting aside the jury verdict in favor of plaintiff, and directing judgment as a matter of law in his favor and dismissing plaintiff's complaint as against him, or (2) granting a new trial as to damages only unless plaintiff stipulates to substantial reductions in the awards for pain and suffering, together with a hearing for purposes of taking collateral source reductions pursuant to CPLR 4545(a) and structuring a judgment in accordance with CPLR article 50-A.
When plaintiff, who was overweight, was 12 years old, he suffered from bilateral gynecomastia, a condition found in males in which the breasts are enlarged and resembles female breasts (Transcript at 434). Since plaintiff's condition was causing him to become involved in fights as a result of being teased about it by other children at his school, his mother, Bernadette Dehaarte, brought him to SUNY Downstate Hospital for treatment (Transcript at 304). Defendant, a pediatric surgeon at SUNY Downstate Hospital, recommended that surgery be performed to correct this condition (Transcript at 60). After a consent form was signed by plaintiff's mother, defendant performed surgery (Transcript at 67). Although defendant had advised plaintiff's mother that the surgery would take 45 minutes to one hour and that surgery would be performed on both of plaintiff's breasts, the surgery on plaintiff's left breast actually lasted three hours and defendant, therefore, elected to operate only on plaintiff's left breast (Transcript at 86).
The surgical procedure performed was a subcutaneous mastectomy (Transcript at 504). Defendant claimed that he performed this mastectomy by making a circumareolar incision from 12:00 to 6:00 (Transcript at 75, 90-91, 186) and a second incision for drainage (Transcript at 157). Plaintiff remained at SUNY Downstate Hospital overnight for observation (Transcript at 86). Plaintiff returned to the emergency room of SUNY Downstate Hospital one week after the surgery with complaints of swelling in his chest after he had injured it by running into a wall at school (Transcript at 164). He was given Tylenol and the dressing was changed (Transcript at 450A). Plaintiff returned to SUNY Downstate Hospital on April 14, 1997, at which time Brian Gilchrest, M.D., another pediatric surgeon, performed surgery on plaintiff's right breast (Transcript at 377).
Plaintiff claims that following defendant's performance of the surgery on him, he lost the nipple on his left breast (Transcript at 240, 317, 451A). According to plaintiff, this nipple loss was the result of a transverse incision made by defendant during the surgery (Transcript at 317-318). While defendant denies making a transverse incision (Transcript at 98), plaintiff has a transverse scar on his left breast.
On February 13, 2004, plaintiff filed this action against defendant, alleging causes of action for medical malpractice and lack of informed consent, and seeking damages. A five-day trial of this action was held before a jury, beginning on July 30, 2007 and ending on August 3, 2007. At the trial, defendant, plaintiff's mother (Bernadette Dehaarte), Mark Weinstein, M.D. (plaintiff's medical expert), Jeffrey Rubin, Ph.D. (plaintiff's expert psychologist), and Stephen Dolgin, M.D. (defendant's medical expert) testified. In addition, documentary evidence, consisting of photographs and medical records (marked as exhibits herein), were admitted into evidence, and plaintiff displayed his chest to the jury, who observed it.
After hearing all of the testimony and evidence presented and deliberating thereon, the jury, on August 7, 2007, rendered its verdict. The jury unanimously found that defendant departed from good and accepted medical practice in the performance of surgery on February 7, 1997 and that the departure by defendant was a substantial factor in causing plaintiff's injuries. The jury (by five out of six jurors) further found that defendant failed to provide appropriate information before obtaining plaintiff's consent to the surgical procedure of February 7, 1997 and that a reasonably prudent person in plaintiff's postion, at the time consent was given, would not have given such consent if given appropriate information. The jury also unanimously found that the operation was a substantial factor in causing the injury to plaintiff.
The jury unanimously rendered a total damages award in the sum of $2,250,000 to plaintiff and against defendant. This award of damages consisted of $250,000 for plaintiff's past pain and suffering, $1,500,000 for plaintiff's future pain and suffering, and $500,000 for plaintiff's future medical expenses.
In support of his instant motion, defendant argues that he is entitled to a judgment, pursuant to CPLR 4404(a), setting aside the jury verdict and directing judgment in his favor and dismissing plaintiff's complaint as against him as a matter of law. CPLR 4404(a) provides that after a trial of an action, the court, upon the motion of a party, may set aside a jury verdict and "direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action . . . where the verdict is contrary to the weight of the evidence."
A trial court should exercise its discretionary power to set aside a jury verdict, pursuant to CPLR 4404(a), only where the jury could not have reached the verdict on any fair interpretation of the evidence ( see Lolik v Big V Supermarkets, 86 NY2d 744, 746; Cohen v Hallmark Cards, 45 NY2d 493, 498-499; Harris v Marlow , 18 AD3d 608 , 610; Ruscito v Early, 253 AD2d 461, 462; Abrahams v King St. Nursing Home, 245 AD2d 251, 251). In order to be entitled to judgment as a matter of law pursuant to CPLR 4401, the court "must determine that by no rational process could the trier of fact find in favor of the nonmoving party on the evidence presented"( Alameldin v Kings Castle Caterers, Inc., ___ AD3d ___, 2008 NY Slip Op 06180, *1 [2008]; see also Maplewood, Inc. v Wood , 21 AD3d 933 , 934; Halbreich v Braunstein , 13 AD3d 1137 , 1138).
Thus, the question before the court on such a motion is whether "there is simply no valid line of reasoning and permissible inferences which could possibly [have] lead rational men [and women] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen, 45 NY2d at 499; see also Adamy v Ziriakus, 92 NY2d 396, 400; Lolik, 86 NY2d at 746). "In considering such a motion, the evidence must be construed in the light most favorable to the nonmoving party, and the motion should not be granted where the facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question" ( Cathey v Gartner , 15 AD3d 435, 436; see also Cameron v City of Long Beach, 297 AD2d 773, 774).
"The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiff's injury" ( Keevan v Rifkin , 41 AD3d 661 , 662; see also Calabro v Hescheles , 22 AD3d 622 , 622; Perez v St. John's Episcopal Hosp. S. Shore , 19 AD3d 389 , 390; Sheridan v Bieniewicz , 7 AD3d 508 , 509; Bloom v City of New York, 202 AD2d 465, 465). "Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause unless the matter is one which is within the experience and observation of the ordinary juror" ( Lyons v McCauley, 252 AD2d 516, 517; see also Fiore v Galang, 64 NY2d 999, 1001; Koehler v Schwartz, 48 NY2d 807, 808; Nichols v Stamer , 49 AD3d 832 , 833; Barila v Comprehensive Pain Care of Long Is. , 44 AD3d 806 , 807). A court may also uphold a jury's verdict "where the logic of common experience itself, as applied to the circumstances shown by the evidence, le[ads] to the conclusion that [a] defendant's negligence was the cause of [a] plaintiff's injury" ( Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 745; see also North Am. Specialty Ins. Co. v Schwanter , 39 AD3d 511 , 512).
The plaintiff's burden of proof of establishing, by a preponderance of the evidence, that the defendant's negligence was a proximate cause of his or her injuries, is satisfied if the possibility of another explanation for the event is "sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" ( Schneider, 67 NY2d at 744). Thus, where the evidence presented at trial is adequate to provide a valid line of reasoning and permissible inferences to conclude that the plaintiff's injuries were caused by a defendant's medical malpractice, the verdict cannot be set aside ( see Cohen, 45 NY2d at 499; Leha v Yonkers General Hosp., 22 AD3d 809, 811; Lopez v Bautista, 287 AD2d 601, 602).
In the case at bar, defendant argues that plaintiff failed to prove that he deviated or departed from the accepted standard of care or that his purported departure was the proximate cause of plaintiff's nipple loss or scarring. This alleged departure was based, in part, upon plaintiff's claim that defendant used a transverse incision in the performance of the subcutaneous mastectomy. Plaintiff's expert, Dr. Mark Weinstein, testified that at the time the mastectomy procedure was performed by defendant upon plaintiff's left breast, it would have been unacceptable for a transverse incision to be used for a gynecomastia reduction procedure (Transcript at 315-316). Dr. Weinstein concluded, based upon the history taken from plaintiff and plaintiff's mother as obtained from their deposition transcripts, his examination of plaintiff, and his review/examination of the photographs admitted into evidence (plaintiff's exhibits 2 through 5), that the procedure which was performed upon plaintiff by defendant deviated from the prevailing standard of medical care and was the cause of plaintiff's disfigurement due to his use of an improper transverse incision, as well as his unnecessarily massive dissection, which compromised the blood supply, leading to the loss of plaintiff's nipple/areola complex (Transcript at 317-321).
Defendant contends that he did not use a transverse incision in the performance of the mastectomy and that all of the evidence which was produced at the trial indicated that he performed the mastectomy via a circumareolar incision from 12:00 to 6:00. Defendant contends that Dr. Weinstein should not have concluded from the existence of plaintiff's transverse scar that he had cut across plaintiff's nipple. Defendant argues that such conclusion was pure speculation and surmise, which was belied by all of the record evidence. He claims that Dr. Weinstein's expert testimony was not based upon facts contained in the record and that his opinion was conclusory and speculative.
Defendant, citing to Dr. Weinstein's testimony (Transcript at 381), claims that Dr. Weinstein admitted that all objective documentary indications were that defendant performed the procedure through a circumareolar incision. However, Dr. Weinstein's actual testimony was only that defendant's operative notes indicated that he performed a circumareolar incision from 12:00 to 6:00, which was inconsistent with the fact that plaintiff has a transverse scar (Transcript at 381). Dr. Weinstein testified that based upon his examination of plaintiff and his examination of the photographs offered into evidence, he saw no evidence of scarring from a circumareolar incision from 12:00 to 6:00 (Transcript at 316-318).
Dr. Stephen Dolgin, defendant's medical expert, agreed that it would have been a departure from the accepted standard of medical care for defendant, in the performance of the gynecomastia reduction surgery, to have made a transverse incision across plaintiff's left breast (Transcript at 451-452, 488-490, 515-516). Dr. Dolgin, who did not conduct a physical examination of plaintiff (Transcript at 480), also concluded, upon review of the photograph which was admitted into evidence as plaintiff's exhibit 2, that he observed evidence of a transverse scar across plaintiff's left breast (Transcript at 457, 515-516). Dr. Dolgin additionally admitted that if a transverse incision or cut was made across plaintiff's left breast during the procedure at issue, there would be a scar from that procedure that would be evident in the photographs in evidence at the trial (Transcript at 489-490, 515-516).
While Dr. Dolgin testified that the transverse scar was inconsistent with any incision that defendant made during the procedure, he also testified that he could not tell what, if anything, was the cause of that transverse scar (Transcript at 457-458). Dr. Dolgin specifically testified that the scarring in the photograph admitted as plaintiff's exhibit 3 was a transverse scar which was consistent with scarring that could be caused by a transverse incision (Transcript at 515-516). No evidence was introduced as to any other intervening cause of the transverse scar across plaintiff's left breast.
Defendant argues that Dr. Weinstein's opinion that plaintiff's nipple lost blood supply and died was unsupported. Defendant asserts that there was no indication in the hospital records that plaintiff's left breast was suffering from necrosis or death of its tissue. Defendant further argues that one of the potential side effects of the surgery was nipple inversion (which is when a nipple turns inward toward the body), and that plaintiff's expert testified that nipple inversion could occur even in the absence of malpractice (Transcript at 384).
Defendant relies upon a diagram (defendant's exhibit A) drawn of plaintiff's chest when he presented to the emergency room one week after his surgery. This diagram shows plaintiff's left nipple and a broken circle drawn around the nipple with the notation "scars healing well." Defendant asserts that this failure to document a problem with the left nipple at that time constitutes evidence that nothing was wrong with plaintiff's nipple at that time, supporting his claim that he did not make a transverse incision. Defendant points out that there was also no indication in a July 17, 1997 endocrine clinic record, made on a visit by plaintiff, that there was anything unusual about plaintiff's nipple (Transcript at 177). This record states "skin, no lesions. Right areola, positive for five centimeter scar beneath it. Left areola, negative for scar." There was similarly no indication that plaintiff had necrosis of the left nipple on the record made for plaintiff's admission to SUNY Downstate Hospital on April 14, 1997 for the surgery on his right breast (Transcript at 363). Defendant admitted, however, that these records also did not contain any indication of post-nipple inversion (Transcript at 189) despite defendant's own testimony that "[t]here was a postoperative complication of nipple inversion" (Transcript at 100).
Defendant, in contrast to his own expert's testimony, testified that it would not have been a departure from accepted medical standards as existed in 1997 for him to have made a transverse incision across plaintiff's left breast for the condition of gynecomastia during the mastectomy operation (Transcript at 107). Defendant also testified that while he did not make a transverse incision because it was not cosmetic, he was "sure [the jurors] all saw the ugly scar that plaintiff had or has on his chest from transverse incisions" (Transcript at 108). Defendant additionally testified, while denying that he made the transverse incision, that the transverse incision "may have added to" what resulted in the current disfigured condition of plaintiff's left breast (Transcript at 108-109).
In addition, defendant's operative report, entitled "Report of Operation" (which was admitted into evidence as plaintiff's exhibit 20), which defendant had prepared (Transcript at 111), stated that "[w]hen approximately one-third of the breast tissue had been dissected off, this was excised by cutting transversely across the breast." Dr. Dolgin testified that he would change his expert opinion that defendant had not performed the transverse incision and had, therefore, not deviated from the accepted standard of care if he was, in fact, presented with medical evidence that would support the fact that defendant had actually made a transverse incision (Transcript at 487-488). When shown defendant's operative report, Dr. Dolgin attempted to explain the reference to the transverse cutting as pertaining to breast tissue only, rather than meaning a transverse cut through the skin of the breast. Although Dr. Dolgin maintained that the word tissue was "implied," he admitted that the operative report did not actually state that the transverse cut was across breast tissue (Transcript at 490-492).
Defendant also asserts that neither plaintiff nor his mother testified that they witnessed any change in plaintiff's nipple after surgery. Plaintiff's mother, however, testified that when she took off the bandage following the surgery, plaintiff's nipple was missing (Transcript at 239-240), and that after the wounds had healed from the surgery, plaintiff did not have any nipple and had scars on his breast (Transcript at 242). Plaintiff similarly testified that when he saw the condition of his left breast after the surgery, there was "no nipple there" and there were "just scars all over" (Transcript at 450A-451A). In addition, the jurors observed the current condition of plaintiff's breast (Transcript at 459A). Plaintiff testified that after the surgery, there was no other incident which caused the scarring or loss of his left nipple (Transcript at 452A).
While defendant claimed that he could see a very fine line from 12:00 to 6:00 on the photographs admitted into evidence (Transcript at 159, 187) (although he did not see a second incision for the drain which he claimed to have made [Transcript at 104, 159]), the jury, upon viewing the photographs in evidence and plaintiff's left breast, could have concluded that there was no evidence of the circumareolar incision from 12:00 to 6:00 that defendant claimed he made during the procedure. As noted above, both experts agreed that if a transverse incision was made, this was a deviation from the accepted medical standard of care.
The jury could reasonably have credited plaintiff's expert's testimony that defendant made the transverse incision which was not disproved by any of the documentary evidence submitted by defendant, and rejected defendant's testimony that he did not make this transversion incision. Thus, the conflicting testimony as to whether plaintiff's injuries were causally related to the surgery performed by defendant presented issues of credibility to be resolved by the jury, which had the opportunity to observe and hear all of the testimony and evidence ( see Wilson v Hallen Constr. Corp. , 40 AD3d 986 , 988; Harris v Parwez , 13 AD3d 675 , 677). Therefore, there is ample, direct evidence from which the jury could rationally conclude that the incisions made and the operative procedure performed by defendant were not in accordance with good and accepted standards of medical practice and that the malpractice was the direct and proximate cause of plaintiff's injuries (see Lieberman v Maimonides Med. Ctr., 278 AD2d 202, 203; Donohoe v Goldner, 168 AD2d 412, 413; Markey v Eiseman, 114 AD2d 887, 888).
Defendant also claims that the verdict against him, insofar as it is based upon lack of informed consent, was against the weight of the evidence. Pursuant to Public Health Law § 2805-d (1), a lack of informed consent means the failure of the physician to disclose to the patient the alternatives to the treatment and the reasonably foreseeable risks involved as a reasonable physician "under similar circumstances would have disclosed in a manner permitting the patient to make a knowledgeable evaluation." In order to sustain a cause of action under Public Health Law § 2805-d, a plaintiff must also establish that "a reasonably prudent person in the patient's position would not have undergone the treatment . . . if he [or she] had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought" (Public Health Law § 2805-d).
Plaintiff's claim of lack of informed consent was based, in part, upon his contention that defendant failed to adequately inform his mother of the risks of the surgery which he underwent. Defendant, in his instant motion, contends that the evidence shows that he informed plaintiff's mother of all of the risks of the surgery. The evidence adduced at trial included the written consent form, entitled "Consent to Diagnostic Operative or Special Procedure" (plaintiff's exhibit 14), which was signed by plaintiff's mother on February 6, 1997. This consent form states that plaintiff's mother gave authorization and consent for the performance upon plaintiff of a "bilateral breast reduction and circumcision." This consent form generally states that the reasonable risks, consequences, and alternative methods of treatment have been explained and discussed with plaintiff's mother by defendant and that she gave her permission with full knowledge and understanding thereof. However, this consent form does not specify the risks of scarring or nipple inversion.
Dr. Weinstein testified that a failure to advise plaintiff's mother of commonly known risks associated with a mastectomy upon a 12-year-old boy would also have constituted a departure from accepted medical practice (Transcript at 313). Defendant and Dr. Weinstein testified that nipple loss, nipple inversion, and scarring were risks of the surgical procedure that was performed on plaintiff (Transcript at 67, 312).
Defendant testified that he did not explain to plaintiff's mother the risk of any scarring that would be left following the surgical procedure (Transcript at 84-85), and that he could not remember whether he actually explained the other risks associated with the surgery to plaintiff's mother (Transcript at 67). Plaintiff's mother testified that defendant did not explain any risks to her, other than that there would be a little scar below plaintiff's nipple (Transcript at 230-231, 253, 259-260). While defendant testified that there was another consent form signed by plaintiff's mother, which was kept in SUNY Downstate Hospital's pediatric surgical clinic files, and which explained the specific risks of nipple inversion, nipple loss, and scarring, this form was never produced by defendant (who claimed that SUNY Downstate Hospital did not produce it and that it was missing) (Transcript at 137, 181-182).
"It is the physician's obligation to furnish a reasonable explanation of the available choices and potential dangers, the test of such reasonableness being for the jury to determine" ( Lipsius v White, 91 AD2d 271, 280). The question of whether defendant orally informed plaintiff's mother of the risks of the surgery and whether another consent form existed which informed her of these risks were for the jury to resolve (see King v Jordan, 265 AD2d 619, 620; Lipsius, 91 AD2d at 280). In finding in favor of plaintiff, the jury concluded that plaintiff's mother was not so informed.
Furthermore, although the signed consent form for the procedure plaintiff underwent was for a "bilateral breast reduction and circumcision," according to the "Report of Operation," the procedure which was performed upon plaintiff by defendant was a "[l]eft subcutaneous mastectomy." Defendant also testified that the procedure he intended was a "single subcutaneous mastectomy" (Transcript at 73-74). Dr. Weinstein, after explaining the difference between a mastectomy and a breast reduction, testified that he did not consider the consent form that plaintiff's mother signed, to be a consent for a mastectomy (Transcript at 314-315). Dr. Dolgin also testified about the difference between both of these procedures, and finally conceded that a breast reduction is not a common term for a mastectomy (Transcript at 507-508).
In addition, the Operative Note that was prepared by defendant following the surgery (plaintiff's exhibit 21) shows that the operation was originally written as being a "bilateral reduction mammoplasty" and that these words were subsequently crossed out and the words "left mastectomy" were substituted. Defendant explained that a mammoplasty was different from a mastectomy (Transcript at 120), and that he had crossed out the words "bilateral reduction mammoplasty" and substituted them with the words "left mastectomy" (Transcript at 121). Dr. Dolgin testified that it must have been crossed out because "they changed that whole operation from what . . . was planned" and that defendant had originally planned a bilateral gynecomastia mammoplasty (Transcript at 505). Thus, the jury's conclusion that defendant did not obtain the informed consent of plaintiff's mother for the mastectomy procedure which he performed is supported by the weight of the evidence, including the operative consent form executed by plaintiff's mother (see Suria v Shiffman, 67 NY2d 87, 98; Motichka v Cody, 279 AD2d 310, 311; King, 265 AD2d at 620).
Plaintiff's claim of lack of informed consent was also based upon defendant's failure to inform his mother that spontaneous resolution (or "wait and see") was a commonly known alternative to the surgical procedure that plaintiff underwent. Dr. Weinstein testified that the spontaneous resolution of gynecomastia was a commonly known alternative to surgery in the medical field in 1997 (Transcript at 304), and that waiting was a viable option in this case (Transcript at 386-387). Dr. Weinstein further testified that in his opinion, the safer alternative was that of spontaneous resolution (Transcript at 302-306). Dr. Dolgin also testified that waiting was an alternative to the surgery performed (Transcript at 437, 514).
Plaintiff's mother testified that she was initially referred to SUNY Downstate Hospital by plaintiff's pediatrician in order for plaintiff to be seen by a nutritionist (Transcript at 220). Plaintiff's mother further testified that she was initially very reluctant to have plaintiff undergo the surgical procedure, and that she believed that all plaintiff needed was to be placed on a weight reduction program (Transcript at 251-252). Plaintiff's mother also testified that defendant informed her that the only option was the surgical procedure which he performed, and that defendant did not inform her of any alternatives to the surgery (Transcript at 251).
Dr. Weinstein testified that if plaintiff's mother was not informed of the option of spontaneous resolution, this was a deviation from the standard of care (Transcript at 304). Defendant admitted that it would be a departure from accepted standards of medical practice as existed in 1997 not be have informed plaintiff's mother of the risks and alternatives to the surgery that he performed on February 7, 1997 (Transcript at 73). Defendant testified that he did not recommend any alternatives that were non-surgical because "there were none" (Transcript at 60-61), and he specifically testified that he did not propose waiting as an alternative prior to the surgery (Transcript at 65).
Defendant argues that plaintiff did not objectively prove that a reasonable person in this situation would not have gone forward with the surgery if he or she had known the risks. Defendant contends that the "wait and see" approach was not an option based upon plaintiff's mother's testimony that plaintiff was teased at school (Transcript at 219), and that the doctors at SUNY Downstate Hospital told plaintiff's mother that plaintiff's condition would not resolve by diet and exercise(Transcript at 222). Plaintiff's mother, however, testified that if she had been aware of the risks of nipple inversion and scarring, she would not have consented to the surgery (Transcript at 244).
Thus, there was a factual issue of whether a reasonably prudent person would have consented to have her 12-year-old son undergo the surgery if fully apprised of the risks associated therewith and the alternatives thereto ( see Public Health Law § 2805-d [3]; Suria, 67 NY2d at 98; King, 265 AD2d at 620; Zimmerman v New York City Health Hosps. Corp., 91 AD2d 290, 292; Lipsius, 91 AD2d at 280-281). It was within the province of the jury to resolve this issue ( see Stewart v Olean Med. Group, P.C. , 17 AD3d 1094 , 1096; Suria v Shiffman, 107 AD2d 309, 312, affd as mod on other grounds 67 NY2d 87).
Contrary to defendant's contention, the jury verdict was supported by legally sufficient evidence. There was adequate testimony for the jury to have determined that a reasonably prudent person in plaintiff's mother's position would not have had her 12-year-old child undergo the subcutaneous mastectomy if she had been fully and accurately informed of the risks of, and alternatives to this surgery ( see Motichka v Cody, 279 AD2d 310, 310-311; King, 265 AD2d at 620; Osorio v Brauner, 242 AD2d 511, 511-512). Moreover, the verdict was not against the weight of the evidence, as it was based on a fair interpretation of the evidence ( see Lolik, 86 NY2d at 746; Lopez, 287 AD2d at 602).
In addressing defendant's post-trial motion insofar as it seeks a new trial based upon his claim that the jury's award of damages to plaintiff is excessive, the court notes that a jury's award is excessive if it "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]; see also Ditingo v Dreyfuss , 27 AD3d 1024 , 1026; Jump v Facelle, 292 AD2d 501, 502-503; Simmons v East Nassau Med. Group, 260 AD2d 463, 465; Garcia v Seigel, 248 AD2d 586, 588; Nevarez v New York City Health Hosps. Corp., 248 AD2d 307, 309). Where the trial court finds a jury's award to be excessive, proper procedure requires that the court direct a new trial on the issue of damages unless the plaintiff stipulates to reduce the verdict by the amount found to be excessive ( see CPLR 4404 [a]; Anderson v Stephen M. Donis, D.P.M. P.C., 150 AD2d 414, 416).
Since pain and suffering awards are not subject to precise quantification, the court, in determining whether a particular award is excessive, must review other analogous cases involving similar and comparable injuries, bearing in mind that any given award depends on a unique set of facts and circumstances ( see Nolan v Union College Trust of Schenectady, NY , 51 AD3d 1253 , 1256; Acton v Nally, 38 AD3d 973, 976; Deyo v Laidlaw Tr., 285 AD2d 853, 854; Donlan v City of New York, 284 AD2d 13, 15; Ordway v Columbia County Agric. Socy., 273 AD2d 635, 636; Garcia v Queens Surface Corp., 271 AD2d 277, 278; Kahl v MHZ Operating Corp., 270 AD2d 623, 624; Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000; Wendel v Supermarkets Gen. Corp., 189 AD2d 1063,1065 [1993]). "[F]actors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" ( Nolan, 51 AD3d at 1256).
In Morris v Cattani (2007 NY Slip Op 32046 [U], *3 [2007]), Kristine Morris, a29-year-old woman, underwent a circumareolar mastopexy, which was intended to correct sagging of the breasts. Instead, it created hypertrophic scars that surrounded the areolae of her breasts ( Id. at 3). Ms. Morris claimed that she suffered pain which stemmed from the scars and that the scars discharged a substance that resembled pus ( Id. at 7). Ms. Morris also underwent treatment for two months, consisting of debridement of damaged tissue and the administration of corticosteroid injections ( Id. at 6-7). In addition, Ms. Morris claimed that the disfigurement caused a residual loss of her self-confidence and had residual effects on her marital life ( id.). The Supreme Court, Richmond County, denied the defense counsel's post-trial motion to reduce the jury's damages award of $200,000 for past pain and suffering and $10,000 for 20 years of future pain and suffering ( Id. at 7).
In Sutch v Yarinsky ( 292 AD2d 715, 715), Debera C. Sutch, a 26-year-old female, lost the entire nipple areola complex of her left breast, leaving in its place a large scar, following bilateral breast reduction surgery. Ms. Sutch described the physical trauma associated with this loss, testifying how it turned into "a very dark brown scab" and separated from the rest of her breast ( Id. at 716). She also described how her breast oozed a thick, yellow drainage which smelled like rotting decayed meat ( id.). Ms. Sutch also underwent various debriding procedures performed to remove the dead tissue from her breast, and the cauterization of the area with silvadene (a procedure which smelled like "burning flesh") ( id.). Ms. Sutch was also left with a two-inch hole in her breast ( id.). A clinical psychologist who treated Ms. Sutch testified that Ms. Sutch experienced major emotional shock and acute anxiety when the condition of her left breast was first revealed to her ( id.). Ms. Sutch and her psychologist also testified as to how her surgery and disfigurement affected her sexual identity as a woman, her sexual relationship with her husband until his untimely death, and her future interpersonal relationships with men ( Id. at 716-717). The Appellate Division, Third Department, upheld the jury's award of $300,000 for Ms. Sutch's seven years of past pain and suffering and $500,000 for her future pain and suffering ( Id. at 717).
In Motichika ( 279 AD2d at 310-311), Joanne Motichka, who had breast cancer, learned, following a mastectomy, that a lumpectomy would have sufficed and that the removal of her entire breast was unnecessary. Ms. Motichika, who claimed a lack of informed consent, testified that the loss of her breast had caused her to become depressed, and impacted her relationships, sexuality, and self-image ( see Joint Appendix at 518-521). The Appellate Division, First Department, affirmed the trial court's reduction of the jury's award to $350,000 for eight years of past pain and suffering and $500,000 for future pain and suffering ( Motichka, 279 AD2d at 310).
In Ditingo ( 27 AD3d at 1025), Josephine Ditingo was misdiagnosed with cancer and underwent an unnecessary mastectomy of her right breast. The evidence established Ms. Ditingo's protracted physical pain associated with the mastectomy surgery and her emotional devastation and anxiety surrounding the diagnosis and ordeal ( Id. at 1026). The evidence also demonstrated Ms. Ditingo's feelings of shame and self-consciousness with regard to her disfigurement and her increased difficulty and discomfort with wearing a prosthetic as a consequence of losing her breast ( id.). The Appellate Division, Third Department, upheld the jury's award of $145,000 for five years of past pain and suffering and $100,000 for future pain and suffering ( Id. at 1026-1027).
In Baez v Dombroff ( 142 AD2d 705, 706), as a result of malpractice during a breast reduction operation, Irma Baez's breasts became heavily scarred, misshapen, and uneven, and her nipples became misshapen, discolored, and cracked. Ms. Baez sustained psychological damages, including fear of contact with people, of leaving her home, and of anyone seeing her breasts ( id.). The Appellate Division, Second Department, found the jury's award of $2,625,000, which the trial court had conditionally reduced to $1,500,000, to be excessive, and further conditionally reduced the award to $750,000 ( id.).
In Lopez ( 287 AD2d at 602), Celina Lopez's physician failed to advise her of the results of a mammogram, allowing her breast cancer to progress and go untreated over the course of 20 months, to the point that a mastectomy was required. The Appellate Division, Second Department, upheld the jury's verdict of $750,000 for past pain and suffering and $250,000 for future pain and suffering ( id.). ( See also Gonzalez v Jamaica Hosp. , 25 AD3d 652 , 653 [jury verdict of $600,000 for past pain and suffering and $250,000 for future pain and suffering due to delay in diagnosing breast cancer which resulted in a mastectomy was found not excessive]; Simmons, 260 AD2d at 464-465 [jury verdict of $800,000 for pain and suffering due to delay in diagnosis of breast cancer which resulted in a partial mastectomy found excessive and conditionally reduced to $450,000]).
In King ( 265 AD2d at 619), Ursula H. King sued for her physician's failure to inform her that a lumpectomy was an alternative to the removal of her breast. The evidence established that Ms. King had a difficult physical recovery, enduring weeks of pain followed by continuing emotional distress ( Id. at 621). Ms. King also described feeling "less than a woman" and testified that the mastectomy hampered intimate relations with her husband ( id.). The Appellate Division, Third Department, upheld the jury's award of $500,000 for eight years of past pain and suffering and $300,000 for future pain and suffering ( id.).
In Suria ( 107 AD2d at 310-311), Luis Suria, a 54-year-old transsexual, claimed that his treating physician acted negligently in administering silicone injections into his breast and in treating a resulting infection with cortisone injections, and that he was not fully informed of the risks associated with a mastectomy to remove hard lumps or granulomata which had formed in his breasts or of the massive scarring which resulted from the surgery. Luis Suria sustained extensive scarring and a permanent deformity, accompanied by severe pain, swelling, discoloration, and oozing in both breasts ( Id. at 310, 314). The Appellate Division, First Department, found that the jury's $2,000,000 damages award was excessive and should be reduced to $800,000 ( Id. at 314).
In the case at bar, the jury's award of $250,000 was based upon plaintiff's past pain and suffering from the date of the surgery up until the date of the verdict. Plaintiff testified as to his loss of his nipple and the scar which remained on his breast (Transcript at 450A-451A). Defendant admitted that the scar was ugly (Transcript at 107-108). Plaintiff had to be hospitalized overnight and had to wait approximately two months before the second surgery on his right breast was performed by a different surgeon on April 14, 1997. There was no evidence, however, that plaintiff, during this 10-year period, had any severe pain, oozing, or discharge from his breast. Plaintiff also did not undergo any debridement of damaged tissue, injections, or other painful treatment for his condition. There is also no evidence that plaintiff experienced a major emotional shock or acute anxiety when he observed the condition of his breast.
After reviewing and considering the testimony and evidence in this action and having compared it to the jury awards in these other cases involving similar injuries, the court finds that the jury's damages award in the amount of $250,000 for plaintiff's past pain and suffering deviates materially from what would be reasonable compensation and was excessive ( see CPLR 5501 [c]; Nolan, 51 AD3d at 1256-1257). Rather, based upon the nature and extent of plaintiff's pain and suffering, and the time period for which he experienced such pain and suffering, the court finds damages in the amount of $225,000 for past pain and suffering to be fair compensation and an appropriate award.
The jury's award of $1,500,000 for plaintiff's future pain and suffering was based upon plaintiff's presumed life expectancy of a period of approximately 54 more years. There is, however, no evidence of any continuing physical pain from the scar. Plaintiff supported his claim of emotional injuries by the testimony of Dr. Jeffrey Rubin, a clinical psychologist, who diagnosed plaintiff with anxiety disorder, as well as dysthymic disorder which is a general sense of depression and being downcast (Transcript at 396-397). Dr. Rubin attributed this to the corrective surgery from the gynecomastia (Transcript at 397). Dr. Rubin testified that plaintiff was anxious about his appearance, embarrassed, and self-conscious (Transcript at 398-399, 410-411), that plaintiff was reluctant to, and had a problem taking off his shirt for the examination of his breast (Transcript at 419), and that plaintiff "expressed distaste for seeing himself in the shower" (Transcript at 419). Dr. Rubin, however, did not see and was not aware of any medical or psychological records of plaintiff (Transcript at 410, 414), and based his opinion solely upon plaintiff's own description of his life before and after the surgery (Transcript at 411). Moreover, Dr. Rubin admitted that there was no evidence that plaintiff received any psychological treatment for his condition (Transcript at 402).
There was no evidence that plaintiff's sexual identity or interpersonal relationships with women was impacted by his injuries. Plaintiff admitted that he had girlfriends (before going to prison where he is presently serving a seven-year prison term for a conviction of criminal possession of a weapon) (Transcript at 464A). Plaintiff did not claim to be emotionally devastated as a result of the surgery. Plaintiff only testified that the condition of his left breast made him feel "uncomfortable" as far as taking off his shirt, and that he did not like how it looked or other people looking at it (Transcript at 460A-461A).
Thus, following the review of the testimony and evidence in this action, as compared to the jury awards in the closest comparable cases, the court finds that the award of $1,500,000 for future pain and suffering is grossly excessive and substantially deviates from what would be reasonable compensation ( see CPLR 5501 [c]; Nolan, 51 AD3d at 1256-1257). Instead, based upon the nature and extent of the testimony and evidence as to plaintiff's continuing future emotional injuries, the court finds damages in the amount of $100,000 for further pain and suffering to be fair compensation and an appropriate award.
With respect to the award of $500,000 for plaintiff's future medical expenses, it is noted that "future medical expenses must be established with reasonable certainty" ( Huff v Rodriguez , 45 AD3d 1430 , 1433; see also Pouso v City of New York , 22 AD3d 395 , 397; Patterson v Kummer Dev. Corp., 302 AD2d 873, 874). The sole evidence on the issue of future medical expenses was Dr. Weinstein's testimony that plaintiff was a candidate for future surgery to improve the cosmetic appearance of his breast and that this surgery would cost approximately $10,000 (Transcript at 321-322). Thus, plaintiff concurs with defendant's contention that the proof only supports an award of $10,000 and has agreed to stipulate to a reduction of the award for future medical damages to this sum. The court finds this reduction to be appropriate.
Defendant, in his motion, also requests a collateral source hearing pursuant to CPLR 4545 (a), which permits an award for medical expenses in a medical malpractice action to be offset by collateral source benefits which covers these expenses. However, in order for a defendant to be entitled to a collateral source hearing, "the defendant must tender some competent evidence from available sources that the plaintiff's economic losses may in the past have been, or may in the future be, replaced, or the plaintiff indemnified, from collateral sources" ( Firmes v Chase Manhattan Auto. Fin. Corp. , 50 AD3d 18 , 36; see also Rosenblyum v Liberty Sorting, 261 AD2d 466, 466). Defendant has not submitted any evidence whatsoever with respect to collateral sources. Thus, defendant's request for a collateral source hearing must be denied. As to defendant's request for the structuring of a judgment, inasmuch as the court has conditionally reduced plaintiff's damages award to less than $500,000, all damages, if plaintiff stipulates to reduce the verdict, are to be paid in a lump sum ( see CPLR 5031 [b]).
Accordingly, defendant's motion is denied insofar as it seeks to set aside the jury's finding of liability as against the weight of the evidence. Defendant's motion is granted insofar as it seeks to set aside the jury's damages award as excessive to the extent that this matter is set down for a new trial upon the issue of damages only, unless within 30 days after service upon plaintiff of a copy of this decision and order, with notice of entry, plaintiff shall serve and file in the Office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to decrease the verdict as to damages: (1) for past pain and suffering from the sum of $250,000 to $225,000, (2) for future pain and suffering from the sum of $1,500,000 to $100,000, and (3) for future medical expenses from the sum of $500,000 to $10,000, and to the entry of an amended judgment in the total principal sum of $335,000. Defendant's motion, insofar as it seeks a collateral source hearing, is denied, and his request for the structuring of a judgment is rendered moot.
This constitutes the decision, order, and judgment of the court.