Preview
FILED: SUFFOLK COUNTY CLERK 03/06/2024 02:45 PM INDEX NO. 602919/2019
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/06/2024
SUPREME COURT - STATE OF NEW YORK
TRIAL TERM, PART 56, SUFFOLK COUNTY
PRESENT:
Hon, Carmen Victoria Sl. George
Justice of the Supreme Court
x
PAUL BERTRAM, Index No.
602919t2019
Motion Seq:
001 rvlD
Decision/Ordcr
Plaintiff,
-against-
TSAI-LUNG TSAI and ORANGE REGIONAL
MEDICAL CENTER,
I)efendants.
x
The following papers with exhibits were read upon this motion:
49-53
55
Reply....................... 56
This medical malpractice action was tried before this Court on two separate occasions, once in
February 2023, which ended in a mistrial on February 16,2023 because of a deadlocked jury, and most
recently recommenced on October 26,2023. On November 1,2023, the jury retumed a verdict in favor
of defendant Tsai-Lung Tsai.
The plaintiffnow moves this Court pursuant to CPLR $ aa0a (a) for an Order setting aside the
jury's verdict in the interest ofjustice because the verdict was contrary to the weight ofthe evidence and
in error as a matter of law, and directing that judgment be entered in favor of plaintiff In the altemative,
plaintilf seeks a new trial. Defendant Tsai opposes the requested relief in all respects.
"'fhe Court ofAppeals has recognized that the setting aside ofajury verdict as a matter oflaw
and the setting aside ofajury verdict as contrary to the u'eight ofthe evidence involve tw'o inquiries and
two different standards" (Ramirez v. Meuacappa,121 AD3d 770,772 [2d Dept 201a]). "[T]he
question whether a verdict is against the weight of the evidence involves what is in large part a
discretionary balancing of many factors. For a court to conclude as a matter of law that a jury verdict is
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not supported by sufficient evidence, however. requires a harsher and more basic assessment ofthejury
verdict" (internal citation omitted) (Cohen v. Hallmark Cards, Inc.,45 NY2d 493, 499 U9781).
"For a court to conclude as a matter of law that ajury verdict is not supported by sufficient
evidence. it must find that there is 'simply no valid line of reasoning and permissible inferences which
could possibly lead . . . to the conclusion reached by the jury on the basis o1'the evidence presented at
trial"' (Ramirez, sapra at 772. qrutling Cohen, supra at 499).
"A jury verdict should not be set aside as contrary to the weight ofthe evidence unless thejury
could not lrave reached the verdict by any lair interpretation of the evidence" (Scalogna v. Osipov, ll7
AD3d 934, 935 [2d Dept 2014]). "When a verdict can be reconciled with a reasonable vie*'oithe
evidcnce. the successful pariy- is entitled to the presumption that the jury adopted that view"
(Handwerker v. Dominick L. Cervi, Inc.,57 A.D.3d 615,616 [2d Dept 2008).
"Thus. rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion
for weight of the evidence (Ramirez, supra at 772). Where a court fi nds that a jury verdict is not
supported by sulficient evidence, that finding leads to a directed verdict, whereas when a court finds that
ajury verdicl is against the weight olthe evidence, a new trial is granted (Nicastro v. Park,1l3 AD2d
129, t32-133 [2d Dept 198s]).
Here, two liability questions were submitted to the jury. The first question asked was whether
defendant Tsai depa(ed from accepted medical practices in {ailing to timely perform a wash out ofthe
injury to plaintiff s ieft hand prior to l2:00 p.m. on June 4,2018. The second question asked was
whether defendant Tsai departed from accepted medical practices by failing to timely reduce the fracture
fragments and angulation ofplaintiff's left hand prior to 12:00 p.m. on June 4.2028. Thejury returned
a unanimous verdict in lavor ofthe defendants on both departure questions without reaching the
causation questions.
The plaintiff maintains that thejury "erroneously found that the def'endant did not depart liom
accepted medical practice in failing to timely perform a wash out ofthe contaminated wound," and that
thejury was also "erroneous" in finding that Tsai did not depart from accepted medical practice by
"tailing to timely perform a reduction ofthe fiactuled fragments and thercby ronrove pressure from thc
sofl tissr"res."
The jury w-as presented will7. inler ulia. plaintifls testimony, Dr. Tsai's testimony. the testimon)'
of plaintifls treating physician/expert (Dr. Winski) and the testimony ofdetbndant Tsai's expert (Dr.
Dagly). Now" plaintiff asserts that "[t]he jury simply did not understand the testimony. which
overwhelmingly established that Dr. Tsai departed from accepted medical practice in failing to timely
address the contaminated wound and fiagmented angulated fracture."
The undisputed facts adduced at trial establish that the plaintiff injured his left index finger while
he was atlempting to move a large rock/boulder in his yard on the aftemoon or early evening ofJune 3,
2018, a Sunday. Plaintitls girlliiend drove him to the emergency department ofBon Secours
Community }lospital in Port Jervis, New York. The plaintiff did not present to the emergency
department ofBon Secours until approximately 7:50 p.m. onJune 3,2018. Staff at Bon Secours paged
Dr. Tsai at approximately 9:30-10:00 p.m. on June 3, 2018, requesting that he call. which Dr. Tsai did.
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Later that same evening, plaintiff was transferred to Orange Regional Medical Center (ORMC) in
Middletown. New York where Dr. Tsai maintained his surgical privileges. The transl'er of the plaintiff
t'rom Bon Secours to ORMC occurred at approximately I 1:00 p.m. on June 3. 2018. Dr. Tsai first saw
the plaintiff and then performed surgery on plaintiff s injured hand starting at approximately 7:30 p.m.
on June 4, 2018. approximately nineteen ( l9) hours after the transf'er.
Dr. Tsai testified that he advised the Bon Secours emergency department physician to wash out
plaintiffs wound and place the plaintiff on broad-spectrum antibiotics like Ancef. Dr. I'sai stated that
typically in the emergency department the washing out ofthe wound consists ofa saline/sterile water
wash and then peroxide and/or Betadine. According to Dr. Tsai. this treatment is administered to
minimize the potential for infection, and also by washing out the wound and administering antibiotics in
the emergency department surgery could be perfomred the next day rather than on an cmergency basis.
In t'act. the Bon Secours records admitted into evidence document that plaintiff s hand. r,r,hich was
"covered in mud and foreign objects (grass)'' was irrigated with saline and soaked with betadine, and
that plaintiff rvas administered Ancef intravenously. Those records also document that plaintiif was
transferred to ORMC for the purposes oihand surgery and a wash out in the operating room (OR).
ORMC records also document the continued administration of Ancef to the plaintiff prior to surgery.
Thus, plaintiff s claim that the jury "ignored" the "absolute critical testirnony" of Dr. Tsai "that'ifthe
wound u,as not washed out sufficiently at the time ofthe emergency room at Bon Secours, then (he) you
would want to intervene sooner," is not persuasive since the cvidence presented to thejury demonstrated
that the wound was washed out at Bon Secours pursuant to Dr. Tsai's order, prior to plaintiff-s transfer
to ORMC.
Dr. Tsai's expert, Dr. Dagly, testified that the failure to do a wash out under anesthesia in the OR
until between 7:30 to 9:30 p.m. on June 4,2018 was not a deviation from the standard ofcare because
the plaintiff was administered antibiotics and the wound had already been cleansed once or twice before
plaintiff got to the OR. As noted, the Bon Secours records document inigation of the wound in the
emergency departnrent of that hospital. "l'he testimony of Physician Assistant Yuengst. who examined
plaintiffat ORMC, established that she examined plaintifl-s finger, that she did not observe any active
bleeding or foreign debris in the wound, and that she also cleansed the wound with nomral saline prior
to the plaintiffbeing brought into the OR. She further stated that the more in-depth wash out was what
Dr. I'sai did at the tinre ofthe surgery. Accordingly, and contrary to plaintifFs contention, Dr. Dagly's
testimony that it was not a departure to perform the in-depth wash out until between 7:30 -9:30 p.m.
because it was his understanding that the wound had been done once or twice before surgery is
supported by the record revealing two irrigations ofthe wound prior to surgery.
Likewise, Dr. Dagly, testified that not reducing the fracture until betweenT:30 pm. and 9:30 p.m.
was not a deviation from the standard ofcare, and that fractures could be dealt with within varying
amounts of time. According to Dr. Dagly, the type of open fracture in plaintiff s case should be
attended to sooner rather than later, but a twenty-tbur (24) hour timeframe is "very reasonable'' because
antibiotics had been administered prior to the actual surgery. Dr. Dagly also stated that 24 hours is "not
an absolule number," nor is it published anywl.rere that the liaclure must be pirured within that period of
time. When asked il pinning the fracture approximately 25 to 26 hours after the inj ury was acceptable,
Dr. Dagly testified that it was, and that it was not a departure.
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The plaintiff's claim that the deflendant's experl's opinions were not supported by the evidenoe is
meritless. as are plaintifls characterization o1'Dr. Dagly's leslimony as "laughable" and "not credible on
its face." Moreover. a review'olthe trial record demonstrates that, contrar) to plaintilfs contentions,
Dr. Dagly's opinions *,ere not flatly contradicted by that record (cf. Nichols v. Stamer,49 AD3d 8i2
[2d Dept 2008]).
'I'he lact that plaintilfs expert expressed diflering opinions as to the two alleged departures does
not warrant either a directed verdict in the plaintiff s lavor or a new trial. IIere, the plaintiffand the
detbndant presented expert testimony in support of their respective positions. and it rlas the province of
the jury to determine the experts' credibility (Bianco V. Sherwin. 165 AD3d 620 [2d Dept 2018];
Giammarino v. Carlo.144 AD3d 1086 [2dDept20l6]; Dehaorte v. Ramenovsky.6T AD3d724 [2d
Dept 20091; Rabinowitz v. Elimion,55 AD3d 813 [2d Dept 20081). Where conflicting expert testimony
is presented, thejury is entitled to accept one experl's opinion and reject that of another expefl
(Eastman v. Nash.l53 AD3d 1323 [2dDept 2017]). The Court notes that the jury in this matter heard
that Dr. Dagly reviewed Dr. Winski's records of treatment rendered to the plaintiffafier plaintiffceased
treatment with Dr. Tsai. When Dr. Dagly was asked his opinion as lo w,hethsr Dr. Winski left the pins
in place for too long following Dr. Tsai's surgery. Dr. Dagly testified that leaving the pins in place fbr
foufteen ( l4) weeks was too long and a deviation fiorn accepted standards o1 care. Dr. Dagly explained
that leaving 1he pins in for so long "leads to stiffjoints and everything stiffin the linger and not allowing
it to move." and that leaving the pins in place for that length of time also leads to scarring. I'hus. the
jury was free to consider this infbrmation in assessing the credibility of plaintifls expert, Dr. Winski.
who testified both as an expert and as plaintills treating physician.
Based on the evidencc adduced at trial, there was a valid line ofreasoning and pemrissiblc
inferences liom which thejury could have concluded that Dr. Tsai did not depart from the standard of
care on both theories ofliability advanced by'the plaintifl, and so the verdict was supported by sullicient
evidence. Moreover, the verdict is not contrary to the weight ofthe er.idence since there is a more than
fair interpretation ofthe evidence supporting the jury's verdict in favor of Dr. 'fsai. The jury's verdict
was reasonable based upon the totality ofthe admissible evidence.
Accordingly, the plaintitf s motion is denied in all respects and the jury's verdict stands
The fbregoing constitutes the Decision and Order ofthis Court
Dated: March6,2024
Riverhead, NY
CARMEN VICTO . GEORGE, J. S.C
FINAL DTSPOSTTION IX ] NON-FINAL DISPOSTTTON []
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Preview
FILED: SUFFOLK COUNTY CLERK 03/06/2024 02:45 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/06/2024 SUPREME COURT - STATE OF NEW YORK TRIAL TERM, PART 56, SUFFOLK COUNTY PRESENT: Hon, Carmen Victoria Sl. George Justice of the Supreme Court x PAUL BERTRAM, Index No. 602919t2019 Motion Seq: 001 rvlD Decision/Ordcr Plaintiff, -against- TSAI-LUNG TSAI and ORANGE REGIONAL MEDICAL CENTER, I)efendants. x The following papers with exhibits were read upon this motion: 49-53 55 Reply....................... 56 This medical malpractice action was tried before this Court on two separate occasions, once in February 2023, which ended in a mistrial on February 16,2023 because of a deadlocked jury, and most recently recommenced on October 26,2023. On November 1,2023, the jury retumed a verdict in favor of defendant Tsai-Lung Tsai. The plaintiffnow moves this Court pursuant to CPLR $ aa0a (a) for an Order setting aside the jury's verdict in the interest ofjustice because the verdict was contrary to the weight ofthe evidence and in error as a matter of law, and directing that judgment be entered in favor of plaintiff In the altemative, plaintilf seeks a new trial. Defendant Tsai opposes the requested relief in all respects. "'fhe Court ofAppeals has recognized that the setting aside ofajury verdict as a matter oflaw and the setting aside ofajury verdict as contrary to the u'eight ofthe evidence involve tw'o inquiries and two different standards" (Ramirez v. Meuacappa,121 AD3d 770,772 [2d Dept 201a]). "[T]he question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors. For a court to conclude as a matter of law that a jury verdict is 1 of 4 FILED: SUFFOLK COUNTY CLERK 03/06/2024 02:45 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/06/2024 not supported by sufficient evidence, however. requires a harsher and more basic assessment ofthejury verdict" (internal citation omitted) (Cohen v. Hallmark Cards, Inc.,45 NY2d 493, 499 U9781). "For a court to conclude as a matter of law that ajury verdict is not supported by sufficient evidence. it must find that there is 'simply no valid line of reasoning and permissible inferences which could possibly lead . . . to the conclusion reached by the jury on the basis o1'the evidence presented at trial"' (Ramirez, sapra at 772. qrutling Cohen, supra at 499). "A jury verdict should not be set aside as contrary to the weight ofthe evidence unless thejury could not lrave reached the verdict by any lair interpretation of the evidence" (Scalogna v. Osipov, ll7 AD3d 934, 935 [2d Dept 2014]). "When a verdict can be reconciled with a reasonable vie*'oithe evidcnce. the successful pariy- is entitled to the presumption that the jury adopted that view" (Handwerker v. Dominick L. Cervi, Inc.,57 A.D.3d 615,616 [2d Dept 2008). "Thus. rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence (Ramirez, supra at 772). Where a court fi nds that a jury verdict is not supported by sulficient evidence, that finding leads to a directed verdict, whereas when a court finds that ajury verdicl is against the weight olthe evidence, a new trial is granted (Nicastro v. Park,1l3 AD2d 129, t32-133 [2d Dept 198s]). Here, two liability questions were submitted to the jury. The first question asked was whether defendant Tsai depa(ed from accepted medical practices in {ailing to timely perform a wash out ofthe injury to plaintiff s ieft hand prior to l2:00 p.m. on June 4,2018. The second question asked was whether defendant Tsai departed from accepted medical practices by failing to timely reduce the fracture fragments and angulation ofplaintiff's left hand prior to 12:00 p.m. on June 4.2028. Thejury returned a unanimous verdict in lavor ofthe defendants on both departure questions without reaching the causation questions. The plaintiff maintains that thejury "erroneously found that the def'endant did not depart liom accepted medical practice in failing to timely perform a wash out ofthe contaminated wound," and that thejury was also "erroneous" in finding that Tsai did not depart from accepted medical practice by "tailing to timely perform a reduction ofthe fiactuled fragments and thercby ronrove pressure from thc sofl tissr"res." The jury w-as presented will7. inler ulia. plaintifls testimony, Dr. Tsai's testimony. the testimon)' of plaintifls treating physician/expert (Dr. Winski) and the testimony ofdetbndant Tsai's expert (Dr. Dagly). Now" plaintiff asserts that "[t]he jury simply did not understand the testimony. which overwhelmingly established that Dr. Tsai departed from accepted medical practice in failing to timely address the contaminated wound and fiagmented angulated fracture." The undisputed facts adduced at trial establish that the plaintiff injured his left index finger while he was atlempting to move a large rock/boulder in his yard on the aftemoon or early evening ofJune 3, 2018, a Sunday. Plaintitls girlliiend drove him to the emergency department ofBon Secours Community }lospital in Port Jervis, New York. The plaintiff did not present to the emergency department ofBon Secours until approximately 7:50 p.m. onJune 3,2018. Staff at Bon Secours paged Dr. Tsai at approximately 9:30-10:00 p.m. on June 3, 2018, requesting that he call. which Dr. Tsai did. 2 2 of 4 FILED: SUFFOLK COUNTY CLERK 03/06/2024 02:45 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/06/2024 Later that same evening, plaintiff was transferred to Orange Regional Medical Center (ORMC) in Middletown. New York where Dr. Tsai maintained his surgical privileges. The transl'er of the plaintiff t'rom Bon Secours to ORMC occurred at approximately I 1:00 p.m. on June 3. 2018. Dr. Tsai first saw the plaintiff and then performed surgery on plaintiff s injured hand starting at approximately 7:30 p.m. on June 4, 2018. approximately nineteen ( l9) hours after the transf'er. Dr. Tsai testified that he advised the Bon Secours emergency department physician to wash out plaintiffs wound and place the plaintiff on broad-spectrum antibiotics like Ancef. Dr. I'sai stated that typically in the emergency department the washing out ofthe wound consists ofa saline/sterile water wash and then peroxide and/or Betadine. According to Dr. Tsai. this treatment is administered to minimize the potential for infection, and also by washing out the wound and administering antibiotics in the emergency department surgery could be perfomred the next day rather than on an cmergency basis. In t'act. the Bon Secours records admitted into evidence document that plaintiff s hand. r,r,hich was "covered in mud and foreign objects (grass)'' was irrigated with saline and soaked with betadine, and that plaintiff rvas administered Ancef intravenously. Those records also document that plaintiif was transferred to ORMC for the purposes oihand surgery and a wash out in the operating room (OR). ORMC records also document the continued administration of Ancef to the plaintiff prior to surgery. Thus, plaintiff s claim that the jury "ignored" the "absolute critical testirnony" of Dr. Tsai "that'ifthe wound u,as not washed out sufficiently at the time ofthe emergency room at Bon Secours, then (he) you would want to intervene sooner," is not persuasive since the cvidence presented to thejury demonstrated that the wound was washed out at Bon Secours pursuant to Dr. Tsai's order, prior to plaintiff-s transfer to ORMC. Dr. Tsai's expert, Dr. Dagly, testified that the failure to do a wash out under anesthesia in the OR until between 7:30 to 9:30 p.m. on June 4,2018 was not a deviation from the standard ofcare because the plaintiff was administered antibiotics and the wound had already been cleansed once or twice before plaintiff got to the OR. As noted, the Bon Secours records document inigation of the wound in the emergency departnrent of that hospital. "l'he testimony of Physician Assistant Yuengst. who examined plaintiffat ORMC, established that she examined plaintifl-s finger, that she did not observe any active bleeding or foreign debris in the wound, and that she also cleansed the wound with nomral saline prior to the plaintiffbeing brought into the OR. She further stated that the more in-depth wash out was what Dr. I'sai did at the tinre ofthe surgery. Accordingly, and contrary to plaintifFs contention, Dr. Dagly's testimony that it was not a departure to perform the in-depth wash out until between 7:30 -9:30 p.m. because it was his understanding that the wound had been done once or twice before surgery is supported by the record revealing two irrigations ofthe wound prior to surgery. Likewise, Dr. Dagly, testified that not reducing the fracture until betweenT:30 pm. and 9:30 p.m. was not a deviation from the standard ofcare, and that fractures could be dealt with within varying amounts of time. According to Dr. Dagly, the type of open fracture in plaintiff s case should be attended to sooner rather than later, but a twenty-tbur (24) hour timeframe is "very reasonable'' because antibiotics had been administered prior to the actual surgery. Dr. Dagly also stated that 24 hours is "not an absolule number," nor is it published anywl.rere that the liaclure must be pirured within that period of time. When asked il pinning the fracture approximately 25 to 26 hours after the inj ury was acceptable, Dr. Dagly testified that it was, and that it was not a departure. 3 3 of 4 FILED: SUFFOLK COUNTY CLERK 03/06/2024 02:45 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/06/2024 The plaintiff's claim that the deflendant's experl's opinions were not supported by the evidenoe is meritless. as are plaintifls characterization o1'Dr. Dagly's leslimony as "laughable" and "not credible on its face." Moreover. a review'olthe trial record demonstrates that, contrar) to plaintilfs contentions, Dr. Dagly's opinions *,ere not flatly contradicted by that record (cf. Nichols v. Stamer,49 AD3d 8i2 [2d Dept 2008]). 'I'he lact that plaintilfs expert expressed diflering opinions as to the two alleged departures does not warrant either a directed verdict in the plaintiff s lavor or a new trial. IIere, the plaintiffand the detbndant presented expert testimony in support of their respective positions. and it rlas the province of the jury to determine the experts' credibility (Bianco V. Sherwin. 165 AD3d 620 [2d Dept 2018]; Giammarino v. Carlo.144 AD3d 1086 [2dDept20l6]; Dehaorte v. Ramenovsky.6T AD3d724 [2d Dept 20091; Rabinowitz v. Elimion,55 AD3d 813 [2d Dept 20081). Where conflicting expert testimony is presented, thejury is entitled to accept one experl's opinion and reject that of another expefl (Eastman v. Nash.l53 AD3d 1323 [2dDept 2017]). The Court notes that the jury in this matter heard that Dr. Dagly reviewed Dr. Winski's records of treatment rendered to the plaintiffafier plaintiffceased treatment with Dr. Tsai. When Dr. Dagly was asked his opinion as lo w,hethsr Dr. Winski left the pins in place for too long following Dr. Tsai's surgery. Dr. Dagly testified that leaving the pins in place fbr foufteen ( l4) weeks was too long and a deviation fiorn accepted standards o1 care. Dr. Dagly explained that leaving 1he pins in for so long "leads to stiffjoints and everything stiffin the linger and not allowing it to move." and that leaving the pins in place for that length of time also leads to scarring. I'hus. the jury was free to consider this infbrmation in assessing the credibility of plaintifls expert, Dr. Winski. who testified both as an expert and as plaintills treating physician. Based on the evidencc adduced at trial, there was a valid line ofreasoning and pemrissiblc inferences liom which thejury could have concluded that Dr. Tsai did not depart from the standard of care on both theories ofliability advanced by'the plaintifl, and so the verdict was supported by sullicient evidence. Moreover, the verdict is not contrary to the weight ofthe er.idence since there is a more than fair interpretation ofthe evidence supporting the jury's verdict in favor of Dr. 'fsai. The jury's verdict was reasonable based upon the totality ofthe admissible evidence. Accordingly, the plaintitf s motion is denied in all respects and the jury's verdict stands The fbregoing constitutes the Decision and Order ofthis Court Dated: March6,2024 Riverhead, NY CARMEN VICTO . GEORGE, J. S.C FINAL DTSPOSTTION IX ] NON-FINAL DISPOSTTTON [] 4 4 of 4