Williams v. New York City Health & Hospitals Corp.

79 A.D.3d 440, 911 N.Y.S.2d 612

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2010
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered March 3, 2009, which denied defendants’ posttrial motion insofar as it sought to set aside the jury’s verdict as to liability, granted the motion insofar as it sought to set aside the jury’s award of $6.5 million as excessive, and directed a new trial as to damages unless plaintiff stipulated to a reduced award of $1 million, affirmed, without costs.

Viewed in the light most favorable to plaintiff, the prevailing party, the evidence sufficiently supports the jury’s findings that defendant physician deviated from good and acceptable medical standards by performing an unnecessary modified radical mastectomy on plaintiff and by failing to inform her that a lumpectomy was a viable alternative treatment, and that a reasonably prudent person in plaintiff’s position would not have undergone a mastectomy had she been informed of her condition and of less invasive, medically sound alternative treatments (see Motichka v Cody, 279 AD2d 310, 310-311 [2001], Iv denied 97 NY2d 609 [2002]). In light of appellate precedents upholding damage awards in cases where an unnecessary mastectomy was performed when a lumpectomy was a viable alternative treatment (see Donlon v City of New York, 284 AD2d 13, 18 [2001]), the trial court properly directed a new trial on the issue of damages unless plaintiff stipulated to reduce the jury awards of $3 million and $3.5 million for past and future pain and suffering, respectively, to $600,000 and $400,000, respectively (see Motichka, 279 AD2d at 311, citing King v Jordan, 265 AD2d 619 [1999]; Lopez v Bautista, 287 AD2d 601 [2001]). The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record. Concur — Andrias, J.P., Freedman and Abdus-Salaam, JJ.