Proce v. Franklin General Hospital

83 A.D.2d 903, 442 N.Y.S.2d 147, 1981 N.Y. App. Div. LEXIS 15330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 31, 1981
• Status: Published

Opinion

In a wrongful death action, plaintiff appeals from a judgment of the Supreme Court, Nassau County (Altimari, J.), entered May 5, 1979, which is in favor of defendants Zuflacht, Zola and Bagdonas, upon a jury verdict. (The court had dismissed the action against defendant Schindelman at the close of the plaintiff’s case.) Judgment affirmed, without costs or disbursements. It was a question of fact whether the cause of the infection that led to the decedent’s death was an undiscovered subphrenic abscess, and the jury’s negative answer to the interrogatory focused on that issue was not contrary to the weight of the evidence. The issue as to whether the surgeons examined the subphrenic area in the course of the later exploratory surgery was a matter of credibility for the jury to decide. Under the circumstances it was not an abuse of the court’s control of the conduct of the trial to refuse to recall the jury on its second day of deliberations to submit to it a further interrogatory that would permit a verdict in favor of plaintiff on an alternate theory (see Caprara v Chrysler Corp., 71 AD2d 515, affd 52 NY2d 114). As to the issue of informed consent, the court, in its charge, correctly stated the law to the effect that one of the elements that plaintiff must prove by a preponderance of the evidence is that a reasonably prudent person in the patient’s circumstances would have refused to undergo the procedure if reasonably informed of the significant perils (see Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199, 207). It was not against the weight of the evidence for the jury to conclude that plaintiff’s proof was insufficient. Titone, J.P., Rabin, Margett and Weinstein, JJ., concur.