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March 14, 1986

MARIE DeMONACO, Plaintiff,

The opinion of the court was delivered by: BARTELS

BARTELS, District Judge


In this medical malpractice action, the plaintiff, Marie DeMonaco, moves for judgment n.o.v., or in the alternative for a new trial, pursuant to Fed. R. Civ. P. 50(b). The plaintiff charged that in 1981, the defendant, Dr. George Mastellone, who had been her obstetrician/gynecologist for approximately 20 years, was negligent in that he failed to properly and timely diagnose and treat her pelvic inflammatory disease caused by actinomycosis. As a result of defendant's negligence, plaintiff alleged, she was forced to undergo a complete hysterectomy when her condition was finally discovered.

 The case was tried before a jury which returned a verdict for the defendant on January 22, 1986. In response to special interrogatories, the jury found that the defendant had been negligent, but that such negligence did not cause the plaintiff's injuries.* Plaintiff here asserts that, given the finding of negligence, the jury's conclusion that such negligence did not cause plaintiff's injuries is unsupported by the evidence.

 The standards for granting a judgment n.o.v. are well recognized. As the Second Circuit Court of Appeals stated,

 the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167-168 (2d Cir. 1980), Aaron Ferer & Sons, Ltd. v. Chase Manhattan Bank, 731 F.2d 112, 121-122 (2d Cir. 1984). Plaintiff cannot meet this standard here.

 The events in this case were not seriously disputed. In February 1977, Dr. Mastellone inserted an intrauterine device (IUD) into Mrs. DeMonaco during an office visit. Thereafter, plaintiff visited Dr. Mastellone at his office in October 1980, and then several more times in 1981 - first on March 30, and also on June 10 and August 19 - presenting various complaints and symptoms. On these visits, Dr. Mastellone examined her and ordered certain tests from which he eventually concluded that she suffered a benign growth of the uterus. Dr. Mastellone removed the IUD on the March 30 visit, and at the August 19 visit, told Mrs. DeMonaco to check back with him in a few months.

 In the meantime, between March and December 1981, Mrs. DeMonaco saw several other doctors, who were not obstetrician/gynecologists, who examined her and performed tests to determine the cause of her complaints. Finally, on December 8, 1981, she visited Dr. Bohm in New Jersey, a gastroenterologist, who, upon his examination and tests, found a large mass in her uterus, unnoticed by previous doctors. He recommended that she contact her gynecologist immediately and be hospitalized. Accordingly, plaintiff saw Dr. Mastellone the next day, December 9, who examined her and recommended immediate surgery. Mrs. DeMonaco underwent surgery on December 23, 1981, during which her uterus, tubes, ovaries and appendix were removed. Post-operative tests revealed that the plaintiff had been suffering for some time from chronic pelvic inflammatory disease with bilateral tube abscesses due primarily to actinomycosis.

 The real issue for resolution by the jury was the conflicting testimony of the parties' respective expert medical witnesses concerning whether, under accepted standards of medical care in the community, (1) the symptoms and complaints presented by the plaintiff to the defendant on her various visits should have led him to suspect the presence of pelvic inflammatory disease as early as March 30, 1981, to perform certain tests to confirm its presence, and thereafter to treat her for the condition; and (2) whether the plaintiff would nevertheless have had to undergo the same surgery even if her pelvic inflammatory disease had been discovered earlier.

 Plaintiff's expert, Dr. Altchek, relying heavily on his own 'authoritative article', published in Pediatric Clinics of North America, Vol. 28, No. 2, May 1981 (Tr. Jan. 15 at 63), opined that the plaintiff had presented clear signs of pelvic inflammatory disease as early as the March 30, 1981 visit, as well as on subsequent visits to Dr. Mastellone (id. at 115-116, 124, 125), and that had the defendant diagnosed it at that time, the condition could have been treated with antibiotics and the hysterectomy could have been avoided. (Id. at 119, 126). On the other hand, defendant's expert, Dr. Troisi, stated that, in view of the rarity and insidious character of pelvic inflammatory disease caused by actinomycosis, which is not easily discoverable (Tr. Jan. 16 at 126-128, 154), Dr. Mastellone had no reason to suspect plaintiff's pelvic inflammatory disease, even as late as the August 19, 1981 visit (id. at 114, 118, 129-130), particularly since plaintiff did not exhibit the clear progression of worsening symptoms associated with more usual forms of pelvic inflammatory disease. (Id. at 130). Dr. Troisi also testified that due to the nature of actinomycosis, the same surgical treatment would have been necessary even had plaintiff's condition been uncovered by Dr. Mastellone earlier. (Tr. Jan. 21 at 171-174, 178, 179).

 In view of the jury's answers to the interrogatories, they obviously chose to believe defendant's expert over plaintiff's expert, see Manning v. New York Telephone Co., 388 F.2d 910, 912 (2d Cir. 1968), and, after reviewing the record, the Court cannot find that there was "a complete absence of evidence" supporting the verdict or "an overwhelming amount of evidence" in favor of the plaintiff justifying a judgment n.o.v. At the hearing on this motion, plaintiff urged that the jury, in deciding that she would have had to undergo the surgery despite defendant's negligence, had ignored testimony by defendant's own expert, Dr. Troisi, that had the pelvic inflammatory disease been discovered in March, Mrs. DeMonaco would not have had to undergo the same surgery she underwent in December. Thus, plaintiff argued, she was entitled to damages for the presumably more extensive surgery required due to the delayed diagnosis.

 In the testimony relied on by plaintiff, Dr. Troisi stated on direct examination,

 The question that you asked, if she had been entered into in March would she have the operation, the same operation in March, probably not but she probably would have ...

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