Opinion
No. 146 SSM 18.
Decided May 11, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered November 19, 2009. The Appellate Division, with two Justices dissenting, affirmed a judgment of the Supreme Court, New York County (Eileen Bransten, J.), entered upon a jury verdict, which had awarded plaintiff the principal sums of $500,000 for past pain and suffering and $2,000,000 for future pain and suffering. The appeal to the Appellate Division brought up for review an order of that Supreme Court (op 2007 NY Slip Op 34065[U]), which had denied defendant's posttrial motion to set aside or reduce the verdict.
In October 2000, plaintiff was referred to defendant, a rheumatologist, after she began to experience pain in her joints. Diagnostic tests performed by defendant revealed that plaintiff had two of the 11 criteria indicating lupus, an autoimmune disease that can affect vital organs. Defendant also performed a urinalysis which did not indicate any kidney disorder. In February 2001, defendant diagnosed plaintiff with inflammatory arthritis, another of the criteria for lupus. Over the next two years, defendant continued to treat plaintiff for the arthritic condition he had diagnosed. He also performed physical examinations and blood tests on plaintiff, but not a urinalysis. In October 2002, plaintiff was experiencing hair loss and visited Dr. Joel Curtis, an endocrinologist, who performed several tests, including a urinalysis. The urinalysis results were positive for protein, which indicated a renal problem, another of the lupus criteria. Dr. Curtis instructed plaintiff to follow up with defendant. However, she did not see defendant again until January 2003. Dr. Curtis also directed his secretary to fax the lab results to defendant, but only the endocrine test results were received. Defendant denied ever having received the urinalysis results. During plaintiffs January 2003 visit to defendant, she complained of swollen feet and ankles. For the first time since plaintiffs initial visit in October 2000, defendant performed a urinalysis. The urinalysis was positive for renal disease, and a biopsy confirmed to defendant that plaintiff had lupus. Defendant prescribed medications, which he told plaintiff would save her kidneys. However, plaintiff discontinued one of the medications and reduced the prescribed dosage of another because of their side effects. Thereafter, plaintiffs kidneys began to fail, requiring five months of dialysis treatment. In December 2003, plaintiff received a kidney transplant.
The Appellate Division concluded that the jury's determination that defendant committed malpractice by failing to monitor plaintiff for the development of lupus was not inconsistent with its finding that he was not negligent in failing to diagnose and treat plaintiff for lupus; that the jury's finding that Dr. Curtis was negligent in not imparting to defendant the results of the urinalysis he performed on plaintiff was not inconsistent with its finding that that was not a substantial factor in causing plaintiffs injuries; and that plaintiff established her prima facie entitlement to judgment by presenting expert evidence that urinalysis was the most appropriate method for diagnosing lupus in her case.
Midler v Crane, 67 AD3d 569, reversed.
Shaub, Ahmuty, Citrin Spratt, LLP, Lake Success Steven J. Ahmuty, Jr., of counsel), for appellant.
Ruskin Moscou Faltischek, Uniondale ( Douglas A. Cooper of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFPEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and a new trial ordered.
We agree with the Appellate Division majority that, on the facts of this case, there was no inconsistency between the findings that defendant was not negligent in failing to diagnose the plaintiffs condition and that he was negligent in failing to monitor her. However, the jury's verdict was inconsistent in finding that defendant's failure to monitor the patient was a substantial factor in causing her injury, while the negligence of a nonparty, Dr. Curtis, in failing to transmit his urinalysis results to defendant was not.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.