July 21, 2019

In its Memorandum And Order entered on June 14, 2019, the Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) stated “the [New York medical malpractice] jury verdict [in favor of the defendant] is against the weight of the evidence” because “the jury’s verdict with respect to whether defendant was required to perform a “focused inspection” of plaintiff’s bowel could not have been reached on any fair interpretation of the evidence.”

The plaintiff alleged in her New York medical malpractice case that the defendant surgeon departed from accepted standards of medical care by failing to adequately inspect her bowel during aortobifemoral bypass surgery. Specifically, the plaintiff alleged that the defendant’s failure to perform an adequate inspection resulted in a failure to discover a perforation in the plaintiff’s bowel, which caused her to develop peritonitis, subsequently lapse into a coma for two
months, and suffer multiorgan, gastrointestinal and respiratory failures.

The New York medical malpractice jury found that the defendant did not depart from the accepted standard of medical care during the surgery, and the plaintiff appealed.

The verdict sheet asked the jury to answer the following question: “Did [the defendant] depart from accepted standards of medical care by not conducting a focused inspection of the entire bowel during the April 17, 2013 aortobifemoral bypass surgery?” Phrasing the question in this manner, at the parties’ agreement, the court instructed the jury that the alleged departure from the standard of care should be measured based on whether a “focused inspection” of the bowel was required. The court and the parties compromised on the words “focused inspection” only after the court rejected the defendant’s request to use “running the bowel” as the applicable standard.

The New York Appellate Court stated, “After hearing nearly uniform testimony from defendant and the parties’ experts about the “running the bowel” procedure, the jury could not have reasonably concluded, based on a fair interpretation of the evidence, that “focused inspection” also meant “running the bowel.”” “The term “running the bowel” was described in nearly identical fashion by defendant and the expert witnesses as an “extremely thorough mechanism” requiring a surgeon to run his or her hands over the bowel, segment-to-segment, looking and flipping it back and forth, examining every aspect of it.”

The New York Appellate Court stated that “the standard of care and a deviation therefrom were not expressed as “running the bowel” and, thus, this case does not present a prototypical battle of the experts.” “Defendant’s own expert testified that the standard of care required defendant to “inspect the bowel” after aortobifemoral bypass surgery … the doctors in the operating room must look at each segment of the bowel as it is returned to the abdomen … [the] defendant and the assisting surgeon were, collectively, required to have a visual on the entire bowel, looking at “each segment of [it]” carefully as it was being sequentially brought back into plaintiff’s abdomen … both parties’ experts testified that the standard of care required at least a careful visualization of the entire bowel, segment by segment. In our view, that is the only reasonable definition of “focused inspection,” considering that the only other standard of care described in the trial testimony was “running the bowel,” which as already noted, cannot also be the definition of “focused inspection.””

The New York Appellate Court stated: “The weight of the evidence greatly preponderates in favor of plaintiff due, in no small part, to defendant’s testimony that he not only failed to perform a “focused inspection” of the bowel, but that “[he could not] not observe it” as he returned it into plaintiff’s abdomen. In not “observing” the bowel, defendant plainly could not have conducted a careful visualization of the body part as it was returned to plaintiff’s body; therefore he was plainly not performing a “focused inspection.” Defendant also admitted that “[he] didn’t specifically look for [bruising]” of the bowel, which his own expert testified is required when inspecting the bowel during an aortobifemoral bypass surgery.”

The New York Appellate Court held: “Inasmuch as defendant’s conduct does not meet the standard articulated by the expert witnesses, we conclude that the evidence so preponderates in plaintiff’s favor that the court erred in denying her motion to set aside the verdict … the verdict sheet essentially asked the jury to determine whether defendant deviated from a standard of care that was not the subject of any expert opinion testimony … [t]hat the jury was given a verdict sheet containing a standard of care that was not based on any evidence at trial, further supports our conclusion that the verdict is against the weight of the evidence and that a new trial is required.”

Source Monzon v. Porter, 1325 CA 18-01090.

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