CPLR R. 4404; Court of Appeals

CPLR  R.4404 Post-trial motion for judgment and new trial

Lang v Newman, 2009 NY Slip Op 04696 (Ct. App., 2009)

Plaintiff was transported to a hospital in January 2003 after
awakening with numbness on the left side of her body, slurred speech
and facial drooping. After arriving in the emergency room, she also
developed a headache. Plaintiff was initially treated by defendant [*2]James
P. Newman, D.O., but his shift ended and defendant Russell J. Firman,
M.D., assumed plaintiff's care. Dr. Firman ordered a CT scan but the
test did not definitively rule out the possibility that there was
bleeding in plaintiff's brain. A routine neurological examination
revealed no abnormalities and plaintiff was administered medication to
treat her headache. Plaintiff declined a more invasive procedure to
determine if her brain was bleeding and was subsequently discharged
with the final diagnosis of a migraine headache.

Shortly after her discharge, plaintiff was examined by her
primary care physician, who believed plaintiff may have been
experiencing a stroke. Plaintiff was sent to a hospital in Syracuse
where an MRI test indicated that she had suffered an ischemic stroke on
the right side of her brain. Shortly thereafter, she was admitted to a
different hospital where she was given anticoagulant medication to
lessen the clotting of her blood and decrease the possibility of a
second stroke. As a result of her stroke, plaintiff suffered permanent

Plaintiff commenced this action against Drs. Newman and Firman,
and their medical groups. Although the jury determined that Firman was
not liable for failing to administer an anticoagulant drug, it found
him liable for failing to admit plaintiff to the hospital and that such
negligence was a substantial factor in causing her injuries. The other
defendants were found not liable. Plaintiff was awarded $300,000 in
damages for past pain and suffering. The Appellate Division affirmed
over a two-Justice dissent, concluding that the verdict was supported
by legally sufficient evidence. We agree.

Evidence is legally insufficient to support a verdict if "there
is simply no valid line of reasoning and permissible inferences which
could possibly lead rational men to the conclusion reached by the jury
on the basis of the evidence presented at trial" (Cohen v Hallmark Cards,
45 NY2d 493, 499 [1978]).
Plaintiff's expert testified that if Firman
had admitted plaintiff to the hospital rather than discharging her, the
stroke would have been diagnosed, she would have been given an
anticoagulant, and the failure to administer that medicine resulted in
"a little larger stroke than she should have had if she was properly
treated." Despite the fact that the expert also stated that it was
"very hard to quantify" precisely how much additional damage plaintiff
suffered as a result of Firman's negligence, we cannot say that the
jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence.

Finally, Firman's challenge to the consistency of the verdict is
unpreserved and there is no merit to his contention that the damages
were speculative.

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