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Bevevino v. Saydjari

decided: April 5, 1978.

VICTOR BEVEVINO, APPELLEE,
v.
M. S. SAYDJARI, APPELLANT



Appeal from a jury verdict for plaintiff in a medical malpractice diversity action brought in the United States District Court for the Southern District of New York, Whitman Knapp, Judge. Appellant's motions for judgment notwithstanding the verdict or for a new trial, premised on contentions of insufficiency of the evidence, improper admission of evidence and excessiveness of the verdict were denied by the district court.

Feinberg and Oakes, Circuit Judges, and Wyatt, District Judge.*fn*

Author: Oakes

OAKES, Circuit Judge:

This appeal is from a $550,000 judgment for the plaintiff rendered in the United States District Court for the Southern District of New York, Whitman Knapp, Judge.*fn1 The jury awarded medical malpractice damages to Victor Bevevino who lost his right eye soon after an automobile crash. The district court denied appellant's motions for a directed verdict and for judgment notwithstanding the verdict or for a new trial.

Appellant, a general surgeon, asserts four grounds for reversal. First, he urges that judgment notwithstanding the verdict should have been granted because (a) there was no basis in the record for finding him negligent since he was not an eye specialist and since he did not countermand the directions of the specialist who examined appellee's eye; and (b) there was no proof of a causal connection between his alleged negligence and appellee's injury. Second, he asserts that the district court committed reversible error and abused its discretion in denying the new trial motion because (a) Judge Knapp found that the verdict was against the clear weight of the evidence, but (b) refused to set it aside solely to penalize appellant's insurer for providing an inadequate defense. Third, appellant contends that it was reversible error to permit the jury to consider evidence of his own bad eyesight. Finally, he argues that the jury's award was grossly excessive.

Having carefully reviewed the evidence in the light most favorable to appellee with respect to the motion for judgment notwithstanding the verdict, see 5A Moore's Federal Practice para. 50.07[2], at 50-79-50-83 (2d ed. 1977), and having given the discretionary judgment of the trial court the benefit of the doubt with respect to the new trial motion, see 11 C. Wright & A. Miller, Federal Practice and Procedure § 2803, at 32-33, § 2818, at 118, § 2819, at 127, § 2820, at 129-32 (1973), we find none of appellant's contentions persuasive. We therefore affirm the judgment below.

I. FACTS

Victor Bevevino was born in Brazil in 1938, attended school through the eleventh year and at one time played professional soccer.*fn2 In 1973 he was working as a waiter at the Grossinger Hotel in Sullivan County, New York. While he was returning home from the Monticello Raceway late in the evening of June 16, 1973, an automobile in which he was a passenger struck a tree, causing injury to his right eye, broken ribs, a punctured lung and a fractured spine. Taken by ambulance to the Community General Hospital (Community General) in Liberty, New York, in the early morning hours of June 17, he was first treated in the emergency room by appellant who was "on call." Bevevino was then moved to the intensive care unit.

The picture of appellee's injuries when he arrived at Community General and of the emergency treatment provided by Dr. Saydjari is somewhat obscure.*fn3 The record becomes clearer after Bevevino was admitted to intensive care. Barbara Hamilton, a registered nurse in charge of the intensive care unit on the morning of June 17, testified that appellee complained of pain in his eye and back and that he was given medication for the pain. She independently recalled the condition of appellee's right eye because "it looked a little grotesque." He had a laceration near his right eye which had been sutured in the emergency room, apparently by Dr. Saydjari. The eye was "ecchymotic*fn4 and edematous,"*fn5 and had "blood coming from between the lids," that is, from under the eyelids. Moreover, "the upper lid was inverted so that the inside of the lid was showing."

When Bevevino was transferred to intensive care, appellant ordered the eye covered with saline compresses to prevent infection from debris or foreign matter. Dr. Saydjari also requested an ophthalmologic consultation, suggesting a Dr. Spivak. Because appellant did not order an immediate consultation, Ms. Hamilton instructed the 7 a. m. shift to arrange for a specialist. Dr. Spivak never saw appellee; Nurse Hamilton did not know whether anyone had attempted to contact him. She testified, however, that appellant, as Bevevino's attending physician, was responsible for following up on any consultation ordered.

Dr. Schwab, an internist, examined appellee at 3 p. m. on June 18, at Dr. Saydjari's request.*fn6 According to the intensive care records, Dr. Schwab asked that Dr. Nemerson, an ophthalmologist, be called in to examine Bevevino's eye. Evidently Dr. Nemerson, who did not examine Bevevino until late in the day on June 18 or early in the morning of June 19,*fn7 merely prescribed Vaseline gauze dressings. The hospital records indicate that the only care afforded appellee's eye during his six-day stay at the hospital, other than application of Vaseline gauze dressings and saline compresses, was antibiotic treatment pursuant to appellant's order.

Bevevino could not remember many details of his stay at Community General. He recalled complaining of severe pain in his eye whenever he was awake, receiving visits from friends each day, and being fed intravenously. He also remembered that on June 22 he implored David Cohen, his lawyer, to remove him to another hospital because the pain in his eye was intensifying. Appellee testified: "I asked him to help me. I was scared. There was a lot of pain. I thought I was in trouble. I asked him to take me from there because if I stay one more day, I no make it. I told him."

A Brazilian friend of Bevevino, Mr. Santos, visited appellee on each of the first five days of his hospitalization at Community General. The thrust of Santos' testimony was that on June 20, three days before Bevevino left the hospital, appellee had vision in his injured eye. When Santos saw a nurse remove the patch from Bevevino's right eye, he asked Bevevino: "Will you close your left eye and look and see if you see anything here?" Bevevino complied, and reported that he saw Santos' hand but not his fingers, and that it was "hard" to see.

Appellant, Mohammed Saydjari, was a general surgeon who immigrated to the United States in 1953.*fn8 An eye problem forced him to retire from medical practice in February, 1974.*fn9 Appellant claimed no independent recollection of having examined or treated Bevevino, and did not know which of the latter's eyes was injured. His recorded description of the eye injury referred to "ecchymosis, edema, redness and bulging of the conjunctiva." It said nothing about the laceration near the eye, which he sutured in the emergency room. Dr. Saydjari reiterated on several occasions that not only did he fail to recognize that Bevevino had a serious injury to his right eye, but that "he would have known nothing about the eye," because it was "out of [his] speciality." Yet he also testified that he was aware of the gravity of the eye injury. While portions of his testimony conflicted as to what he had or had not done, it is fairly clear that he did not look inside the eye and made no tests to determine Bevevino's ability to see.

Dr. Saydjari also testified that he called in three ophthalmologists, Drs. Spivak, Nemerson and Fisher. However, the hospital record indicates that neither Spivak nor Fisher ever consulted on the Bevevino case. Despite the conflict between the doctor's testimony and the hospital records, it is again quite evident that the only eye specialist who saw Bevevino was Dr. Nemerson.

Appellant further explained that he usually did not speak personally with consulting doctors. Rather, after consultants examined a patient, they would leave a report or note. When asked to read Dr. Nemerson's "report,"*fn10 appellant could decipher only a few words of the handwriting. Immediately thereafter he independently recalled a conversation with Dr. Nemerson who, according to Dr. Saydjari, told him

"I can't give any opinion unless the swelling goes down so I can look into it. For the time being, I have to get this edema down and then I will examine it, as soon as the edema subsides," and that he would be following up, waiting for the right moment to look inside the eye.

Dr. Nemerson, however, did not return to the hospital during the remainder of appellee's stay.*fn11

Appellee's lawyer at the time, David Cohen, visited Bevevino on June 22 to discuss legal matters. In response to appellee's mounting complaints that his eye was hurting him terribly and that he feared loss of his vision, Mr. Cohen telephoned Dr. Saydjari to inform him of Bevevino's discomfort and to determine the condition of the eye. Cohen testified that the doctor replied: "Don't worry about it. He will be fine. His eye is being taken care of." The attorney asked Saydjari what was being done, and in particular whether an eye specialist had been contacted. Appellant replied that he "assume[d] an eye doctor came because [he] left orders for him to come." But after appellee cried for help, Cohen arranged Bevevino's transfer to Horton Memorial Hospital (Horton) in Middletown, New York, some thirty miles away. Dr. Saydjari advised against the transfer.

Two hours after admission to Horton on the evening of June 22, Bevevino was examined by Dr. Kenneth Adams, an ophthalmologist, who observed the sutured lacerations on Bevevino's right upper eyelid and "a good deal of swelling." Bevevino was in pain and "not in very good shape." Dr. Adams diagnosed that Bevevino had some vision during the first examination in the form of light perception, but he did not think that the eyesight could be saved at that time. Nor did he believe that prompt action immediately after the accident could have saved Bevevino's vision in the damaged eye. Explaining that a pathological report conducted after he removed the eye revealed that the retina was partially outside of the eye, Dr. Adams testified that "the chance of visual saving of the eye is pretty small -- virtually nil" when the retina is prolapsed. However, he conceded that exerting ...


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