In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Lally, J.), entered April 2, 2009, which, upon an order of the same court entered January 8, 2009, inter alia, granting those branches of the defendants' separate motions which were for leave to reargue those branches of their prior motions which were pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability as unsupported by legally sufficient evidence and for judgment as a matter of law, which had been determined in an order of the same court entered May 15, 2008, and, upon reargument, vacating so much of the determination in the order entered May 15, 2008, as granted those branches of the prior motions which were pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial, and thereupon granting those branches of the defendants' separate motions which were pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as unsupported by legally sufficient evidence and for judgment as a matter of law, is in favor of the defendants and against them dismissing the complaint.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.
ORDERED that the judgment is affirmed, with one bill of costs.
The plaintiff Anthony Shallash (hereinafter Shallash) arrived at the defendant New Island Hospital (hereinafter New Island) by ambulance at 10:39 A.M. on November 26, 2000, presenting symptoms and signs of right-sided weakness, difficulty walking, and slurred speech. The defendant Dr. Anthony Carlisi first examined Shallash at 10:45 A.M., and promptly ordered certain tests to be performed, including an electrocardiogram, a chest X-ray, and a computed tomography (hereinafter CT) scan. The last image on the CT scan was taken at 11:32 A.M., and confirmed that Shallash had suffered a stroke caused by a blood clot in the brain.
Shortly after Shallash's arrival at New Island, his wife arrived and immediately demanded that her husband be transferred to Long Island Jewish Medical Center (hereinafter LIJMC). While tests were being performed on Shallash, his primary care physician called Carlisi and requested that Shallash be transferred to LIJMC, stating that he was making the transfer arrangements. Carlisi made a transfer request to LIJMC at 11:15 A.M., and it was accepted by that institution at 11:20 A.M. or 11:30 A.M.
Shallash's wife also demanded that her husband be given tissue plasminogen activator (hereinafter TPA), a drug which can dissolve clots in certain stroke patients, and which must be administered within three hours of the onset of the stroke. Dr. Carlisi determined that the drug was contraindicated in Shallash's circumstance and did not administer it. The ambulance from LIJMC arrived at New Island at 12:36 P.M., left New Island at 12:50 P.M., and brought Shallash to LIJMC at 1:20 P.M. Shallash remained there for 11 days. He has since made a significant recovery, but allegedly sustained permanent injuries.
The plaintiffs commenced this medical malpractice action, alleging three theories of malpractice. They alleged that Carlisi (1) misdiagnosed Shallash, (2) failed to timely administer TPA, and (3) failed to timely transfer Shallash to LIJMC. This last theory was based on the contention that, had Carlisi taken appropriate steps to expedite Shallash's transfer, a physician at LIJMC would have timely administered TPA.
After a trial, a jury determined that Carlisi did not deviate from reasonable medical care by misdiagnosing Shallash or failing to timely administer TPA. It did find, however, a deviation in his failure to timely transfer Shallash, and further found that such deviation was a substantial factor in causing Shallash's injuries. Following the verdict, the defendants moved pursuant to CPLR 4404 (a) to set aside the verdict on the issue of liability as unsupported by legally sufficient evidence, and for judgment as a matter of law or, alternatively, to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.
In an order entered May 15, 2008, the Supreme Court held that the jury verdict was inconsistent, inasmuch as a finding that the failure to administer TPA was not a deviation from accepted medical practice was inconsistent with a finding that the failure to transport Shallash for that very purpose was a deviation from accepted medical practice. The court also observed that there was no testimony offered by the plaintiffs that, upon Shallash's timely arrival at LIJMC, TPA would have been administered in any event. On the basis of the inconsistent verdict, the court granted those branches of the defendants' separate motions which were to set aside the verdict as contrary to the weight of the evidence, and ordered a new trial. All parties moved for leave to reargue.
The Supreme Court thereafter granted reargument and, upon reargument, agreed with the defendants that the plaintiffs had not presented evidence from which a jury could rationally conclude that Carlisi's failure to timely transfer Shallash was a competent producing cause of his injuries. The court therefore vacated its determination in the prior order that the verdict was contrary to the weight of the evidence and that a new trial was warranted, and granted those branches of the defendants' separate motions which were to set aside the verdict as unsupported by legally sufficient evidence and for judgment as a matter of law. The court subsequently entered judgment dismissing the complaint. We affirm.
The Supreme Court did not improvidently exercise its discretion in granting those branches of the defendants' separate motions which were for leave to reargue. Contrary to the plaintiffs' assertions on appeal, the defendants did not raise new arguments in those branches of the motions (cf. CPLR 2221[d]; Simpson v Loehmann, 21 NY2d 990, 991; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590, ...