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Rose v. Conte

Supreme Court of New York, First Department

June 11, 2013

Noel Abraham Rose, as Executor of the Estate of Hermine Browne, Plaintiff-Appellant, Dr.
v.
Salvatore Conte, et al., Defendants-Respondents, Philip J. Klapper, M.D., et al., Defendants.

Duffy & Duffy, Uniondale (James N. LiCalzi of counsel), for appellant.

LeClairRyan, P.C., New York (Barry A. Cozier of counsel), for respondents.

Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ.

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered August 26, 2011, which granted the motion of defendants Dr. Salvatore Conte (Dr. Conte), Salvatore Conte, M.D., P.C., and Conte and Matfus, M.D., P.C. to set aside the jury verdict and grant a new trial, reversed, on the facts, without costs, and the motion denied.

In this wrongful death action predicated on medical malpractice, the jury heard testimony from plaintiff's oncology expert that the decedent's long-term primary care practitioner, defendant Dr. Conte, deviated from accepted medical standards when, upon the decedent's return to Dr. Conte's practice in February 2001, after a 21-month absence, with complaints of pain and other abdominal symptoms, he diagnosed her with irritable bowel syndrome (IBS), without referring her for an abdominal CT scan or a gastrointestinal (GI) work-up (which would have included the scan), so as to exclude other conditions, and that these diagnostic tests would likely have detected the presence of the tumor in the upper left quadrant of the abdomen. Due to this failure, the tumor was not definitively identified until March 2002, when the decedent returned from her native Jamaica with a positive abdominal sonogram, and Dr. Conte immediately referred her for a CT scan, which confirmed the mass. Plaintiff's expert also opined that, based on this extended delay, the decedent was deprived of the opportunity for a cure, defined as five years' survival without the disease, insofar as her tumor was much smaller at the time of her first complaints and would likely have been completely surgically resectable and amenable to treatment. By the time of the eventual surgery in May 2002, the tumor had become so massive, and invaded so many organs, that it was only partially resected, and, despite several years of oncological treatment, the decedent died in September 2007.

While the defense took the position that the decedent failed to inform Dr. Conte of complaints that would have justified his directing a GI work-up or abdominal scan, the jury was entitled to reject Dr. Conte's testimony to that effect, and to accept instead the decedent's assertion, recorded in her videotaped deposition testimony, that she reported complaints of excruciating stomach pain at each visit. Similarly, the jury could reject Dr. Conte's testimony that he first palpated an abdominal mass in September 2001 and advised the decedent to undergo GI testing, and that she steadfastly refused to do so; that testimony, too, was flatly contradicted by the decedent's deposition testimony.

The dissent concludes that the weight of the evidence establishes that nothing in Dr. Conte's conduct could have caused the decedent's early death, since nothing he could have done would have prevented her death at that time. It emphasizes the defense evidence asserting that the decedent's tumor was of a particular type, an EGIST (extra-gastrointestinal stromal tumor), which generally evades early detection when small and asymptomatic, and only causes symptoms once it grows large (which it does quickly). According to this theory, any CT scan or GI work-up ordered by Dr. Conte in February 2001 would have had no impact on the development of her tumor and her eventual death.

However, the testimony offered by Dr. Conte and defense experts in this regard is not absolute fact, but merely evidence that the jury was free to disregard if other, contrary evidence was more convincing. Both plaintiff's expert and the radiologist who interpreted the March 2002 CT scan testified unequivocally that the tumor was of a different type, a GIST (gastrointestinal stromal tumor), which originated in the gastrointestinal tract and would have produced symptoms very early on, while it was smaller and much more amenable to resection and treatment. The jury was also informed of a report by the decedent's doctor at a cancer treatment facility stating that the surgeon's and the pathologist's diagnosis of the more fatal tumor was incorrect, and that the other diagnosis rendered by plaintiff's expert and the first radiologist was correct. In addition, there are multiple instances in the decedent's records of the surgeon's and another of the decedent's oncologists' referring to the tumor as the more treatable GIST-type that causes early symptoms and can be effectively treated.

The dissent suggests that plaintiff's expert oncologist was shown to be wrong because if the tumor had been a GIST, the decedent would have been in substantial pain between February 2001 and September 2001, and "would have followed Dr. Conte's advice in September and October 2001 and submitted to an intestinal work-up." However, the decedent stated that she was in substantial pain and that Dr. Conte did not give her any such advice, ultimately leading her to obtain a second opinion when she went to Jamaica in March 2002.

"The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence" (Gartech Elec. Contr. Corp. v Coastal Elec. Constr. Corp., 66 A.D.3d 463, 480 [1st Dept 2009], appeal dismissed 14 N.Y.3d 748 [2010]). On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence (see Bennett v Wolf, 40 A.D.3d 274 [1st Dept 2007], lv denied 9 N.Y.3d 818 [2008]). The jury was entitled to resolve in plaintiff's favor the conflict between the decedent's and Dr. Conte's testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.

The dissent observes that in granting defendants' CPLR 4404(a) motion, the trial court differed from the jury regarding the relative credibility of the decedent and plaintiff's expert, as opposed to that of Dr. Conte and his experts. However, since in our view, a "fair interpretation of the evidence" supports the jury's verdict, the trial court's contrary assessment does not justify a new trial.

This case essentially came down to a battle of the experts with respect to the standard of care and the type of tumor at issue and whether it could have caused symptoms at the time of the alleged departure, thus raising an issue of credibility peculiarly within the province of the jury (see Briggins v Chynn, 204 A.D.2d 158 [1st Dept 1994]), whose determination should be afforded great deference (Nicastro v Park, 113 A.D.2d 129, 136 [2d Dept 1985]).

Insofar as Dr. Conte has challenged the sufficiency of the evidence underpinning the awards of compensation to the decedent's adult children, we find that the testimony as to the nurture, care, and guidance provided by the decedent to all of the children, in particular the care-taking services rendered to her handicapped son, was adequate to support their respective awards (see e.g. Gonzalez v New York City Hous. Auth., 77 N.Y.2d 663 [1991]; Zygmunt v Berkowitz, 301 A.D.2d 593 ...


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