Anarumo v. Herzog

201 A.D.3d 778

162 N.Y.S.3d 381

Mary ANARUMO, appellant,

v.David HERZOG, etc., et al., respondents.

2018–00436

Index No. 151065/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 28, 2021

January 19, 2022

Parker Waichman LLP, Port Washington, NY (Jay L.T. Breakstone of counsel), for appellant.

Belair & Evans LLP, New York, NY (John T. Evans of counsel), for respondent.

MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Orlando Marrazzo, Jr., J.), dated November 28, 2017. The judgment, upon a jury verdict, and upon the denial of the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law, or in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

In 2012, the plaintiff was prescribed Ortho Tri–Cyclen Lo, an oral contraceptive, by the defendant David Herzog. In September 2012, the plaintiff, then 34 years old, allegedly suffered a stroke. The plaintiff subsequently commenced this action against Herzog and his professional corporation (hereinafter together the defendants) to recover damages for medical malpractice and lack of informed consent.

The jury returned a verdict finding that Herzog did not depart from the standard of care. Thereafter, the plaintiff moved pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law, or in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion. A judgment was thereafter entered, upon the verdict, in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals from the judgment.

A motion to set aside a jury verdict and for judgment as a matter of law will be granted only if there is no valid line of reasoning and permissible inferences which could possibly lead a rational jury to the conclusion reached on the basis of the evidence presented at trial (see Killon v. Parrotta, 28 N.Y.3d 101, 108, 42 N.Y.S.3d 70, 65 N.E.3d 41 ; Campbell v. City of Elmira, 84 N.Y.2d 505, 509–510, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 ). "In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" ( Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). Expert testimony is generally necessary to prove a deviation from accepted standards of medical care and to establish proximate cause (see Bianco v. Sherwin, 165 A.D.3d 620, 622, 85 N.Y.S.3d 173 ; Gaspard v. Aronoff, 153 A.D.3d 795, 796, 61 N.Y.S.3d 240 ).

Here, viewing the evidence in the light most favorable to the defendants, a valid line of reasoning exists by which a rational jury could have found that Herzog did not depart from accepted standards of medical care when he prescribed the plaintiff Ortho Tri–Cyclen Lo and when he failed to advise the plaintiff of the risks of that medication when prescribed to her. There was testimony that when the plaintiff came to see Herzog on June 5, 2012, she misled him by requesting a refill for birth control pills, which in fact, Herzog had never prescribed for her. Herzog testified that on that date the plaintiff's medical chart, which...