Rosseland v. Hospital of Albert Einstein College of Medicine

158 A.D.2d 409, 551 N.Y.S.2d 244, 1990 N.Y. App. Div. LEXIS 1875

Opinion

Plaintiff’s decedent Robert Rosseland died as a result of blockage of the vertebral arteries. Plaintiff attempted to prove at trial that defendants were negligent in not promptly diagnosing and treating Mr. Rosseland’s condition, while defendants introduced testimony that the failure to identify his condition for a period of 35 days was not the result of medical malpractice, and that even if earlier diagnosis had been made, Mr. Rosseland’s life could not have been saved.

After reviewing the record, we conclude that the trial court did not abuse its discretion in denying plaintiff’s application to introduce rebuttal testimony on issues which were either brought out in the course of plaintiff’s direct case or should have been established as part of plaintiff’s direct case (see, Yeomans v Warren, 87 AD2d 713). With regard to the jury’s apparent confusion as to their required vote on each of the items in the court’s special verdict sheet, we observe that the jury answered negatively each interrogatory dealing with proximate cause by at least a five to one vote. Having found no proximate cause, any confusion as to the jury’s votes on whether two of the defendants were negligent was academic, and in any event was resolved when the jury deliberated after clarifying instructions. Concur—Kupferman, J. P., Ross, Kassal, Smith and Rubin, JJ.