Marcia A. WILD et al., as Coexecutors of Marguerite Horn, Deceased, et al., Respondents,
CATHOLIC HEALTH SYSTEM, Doing Business as Mercy Hospital of Buffalo, et al., Defendants, and Buffalo Emergency Associates, LLP, et al., Appellants.
[969 N.Y.S.2d 847] Damon Morey LLP, Buffalo (Michael J. Willett and Patrick B. Curran of counsel), for appellants.
Paul William Beltz, P.C., Buffalo (Debra A. Norton and William A. Quinlan of counsel), for respondents.
[991 N.E.2d 705] The Appellate Division order should be affirmed, with costs.
Defendants Dr. Raquel Martin and her firm, Buffalo Emergency Associates, LLP, challenge a jury verdict in favor of plaintiffs in this medical malpractice action against Dr. Martin
and several other institutional and individual defendants, for negligence resulting in injury to plaintiff Marguerite Horn. Defendants claim that the jury charge improperly reduced plaintiffs' burden of proof. We disagree.
In 2005, decedent, an 83-year-old woman, was rushed to a hospital after her 89-year-old husband, Joseph Horn, found her unresponsive and on the floor of their home. At the hospital, the emergency room physician, defendant Dr. Martin, concluded that Horn had difficulty breathing and may have suffered a stroke. Attempts were made to insert an endotracheal tube in Horn's throat, including two unsuccessful attempts by Dr. Martin, during one of which Dr. Martin inserted the tube into Horn's esophagus. After several failed attempts an anesthesiologist successfully intubated her.
During the intubation procedure Dr. Martin observed a subcutaneous emphysema under Horn's skin. However, not until days later did physicians finally discover that Horn's esophagus had been perforated during intubation. Surgical attempts at repair proved unsuccessful, and, as a consequence, for the three remaining years of her life, until her death of an unrelated cause, Horn was unable to consume foods or liquids by mouth, and required a feeding tube, as well as the daily assistance of her husband, for her nutritional intake.
A jury found Dr. Martin solely liable and returned a one million dollar plaintiffs' verdict of $500,000 for the decedent's pain and suffering and $500,000 for the husband's loss of consortium. The Appellate Division unanimously affirmed, on plaintiffs' stipulation to a reduction of the loss of consortium damages to $200,000 (85 A.D.3d 1715, 927 N.Y.S.2d 250  ).
On appeal, defendants contend that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted this theory, and the charge relaxed [991 N.E.2d 706] [969 N.Y.S.2d 848] the plaintiffs' burden of proof.[*] Defendants base their argument on the following jury charge language:
" The negligence of any of the defendants may be considered a cause of the ...