Nussbaum v. Gibstein

138 A.D.2d 193, 531 N.Y.S.2d 276, 1988 N.Y. App. Div. LEXIS 7374
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 5, 1988
StatusPublished
Cited by7 cases

This text of 138 A.D.2d 193 (Nussbaum v. Gibstein) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nussbaum v. Gibstein, 138 A.D.2d 193, 531 N.Y.S.2d 276, 1988 N.Y. App. Div. LEXIS 7374 (N.Y. Ct. App. 1988).

Opinion

OPINION OF THE COURT

Thompson, J. P.

We address on this appeal, inter alia, whether loss of enjoyment of life is a compensable element of damages apart from a specific award of damages for pain and suffering. The trial court’s instructions to the jury and its submission of interrogatories permitted the jury to assess the loss of enjoyment of life as a distinct item of damages. Upon the facts of this particular case, we find that the trial court did not err in [195]*195delivering a loss of enjoyment of life instruction in addition to the usual instruction pertaining to pain and suffering. The question of whether an award of damages for loss of the normal pursuits and pleasures of life is encompassed within general damages for pain and suffering or constitutes a separate category of damages is essentially semantical because a clear distinction may be drawn between the concepts of pain and suffering and loss of enjoyment of life. Permitting an independent award for loss of enjoyment simply enunciates this court’s recognition of the conceptual differences between these two types of damages. We therefore affirm the judgment in favor of the plaintiff in its entirety.

I

The following facts giving rise to this controversy are essentially not in dispute. On September 21, 1982, the plaintiff’s decedent, 32-year-old Elaine Celetti, visited her gynecologist, the defendant Dr. Alan Gibstein, for her annual checkup. At that time, Dr. Gibstein made note of a one-centimeter mass on the outside lower quadrant of Mrs. Celetti’s left breast which he tentatively classified as a galactocele, i.e., a milk-filled cyst. No further tests were performed. Ten months later in July 1983 Mrs. Celetti returned to Dr. Gibstein complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in Mrs. Celetti’s breast was diagnosed as cancer which had metastasized, i.e., spread, to three ribs and two vertebrae. Elaine Celetti died nearly two years later on June 8, 1985, as a result of the extensive metastasis of the cancer leaving as the sole distributee of her estate her then four-year-old daughter Jessica.

In this action commenced to recover damages for conscious pain and suffering and wrongful death, Dr. Gibstein and his professional corporation are charged with various acts of malpractice stemming from his failure to properly diagnose Mrs. Celetti’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the defendants 90% liable and the plaintiff’s decedent 10% contributorily negligent, rendered the following itemized award of damages, in accordance with the court’s instructions and special interrogatories:

[196]*196A. First Cause of Action:
1. Conscious Pain and Suffering $300,000
2. Loss of Enjoyment of Life $200,000
$500,000
Wrongful Death Cause of Action:
1. Loss of Support $ 75,000
2. Loss of Household Services $100,000
3. Cost of College Education in the future $ 25,000
4. Loss of Prospective Inheritance $ 75,000
5. Loss of Parental Guidance, Care and Nurture $100,000
$375,000

The defendants immediately moved to set aside the verdict on the grounds, inter alia, that as to liability the verdict was against the weight of the evidence and inconsistent. The defendants further charged that the damages awarded were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the plaintiff’s decedent. The reductions made as to the total amounts awarded on each cause of action are reflected in the judgment as follows:

First Cause of Action $450,000
Wrongful Death Cause of Action $337,500
$787,500.

The amount of the judgment with interest, costs and disbursements totaled $845,772.59.

The defendants appeal, arguing that (1) the verdict as to liability is against the weight of the credible evidence adduced at the trial, (2) the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and (3) the awards to Mrs. Celetti’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

II

We affirm the trial court’s denial of the defendants’ [197]*197motion to set aside the verdict in favor of the plaintiff as against the weight of the evidence. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129, 134). On such a review, the evidence must be viewed in a light most favorable to the plaintiff to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the defendant (see, Cohen v Hallmark Cards, 45 NY2d 493, 497). So viewed, we find ample basis in the record to support the jury’s verdict.

One of the key issues in controversy at trial was whether the lump Dr. Gibstein first noticed in Elaine Celetti’s breast in September 1982 was the same as the cancerous tumor surgically removed from the decedent’s breast one year later. Dr. Gibstein, a specialist in obstetrics and gynecology who had also completed a fellowship in oncology, first noted the lump measuring one centimeter in size in Mrs. Celetti’s breast during a routine physical examination performed in September 1982. Apparently because of the decedent’s history of being cystic, Dr. Gibstein was not overly concerned about the lump upon its initial appearance. According to Dr. Gibstein’s trial testimony, after making a tentative determination that the lump was a one-centimeter galactocele and making a diagram indicating the location of the lump, Dr. Gibstein advised Mrs. Celetti to return for a follow-up examination in 2 or 3 months. Dr. Gibstein conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the decedent to examine her breasts during the intervening period. Dr. Gibstein’s office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to Mrs. Celetti.

Upon the decedent’s return to his office 10 months later in July 1983 Dr. Gibstein examined the lump of which the decedent then complained and was of the opinion that while it was near the site of the September 1982 lump, the respective masses were in fact in entirely different locations. Dr. Gibstein, fearing the lump might be cancerous, directed Mrs.

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Bluebook (online)
138 A.D.2d 193, 531 N.Y.S.2d 276, 1988 N.Y. App. Div. LEXIS 7374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nussbaum-v-gibstein-nyappdiv-1988.