Jury Verdict Set Aside

The Appellate Division, Second Department recently set aside a $1.1 million jury verdict on the issue of liability and dismissed the complaint in favor of HPM&B’s clients, an otolaryngologist and her private medical group.  This medical malpractice action involved an alleged negligent postoperative care related to endoscopic sinus surgery.  The court found that there was no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion that the alleged departures were a substantial factor in causing injury to the plaintiff.  It therefore took the unusual step of dismissing the action altogether in lieu of ordering a new trial.


During trial, the jury found in favor of defendants on plaintiff’s claim that the surgery was performed in a negligent fashion, but the jury faulted defendants for failing to apprise the plaintiff that a patch was placed during the endoscopic sinus surgery and in failing to advise plaintiff to take certain precautions post-operatively.  On appeal, the court agreed with HPM&B’s position there was insufficient evidence that such departures were a substantial factor in causing the patient’s injuries.  Although an expert opined that the physician should have advised the patient of the existence of the patch and given written instructions for bed rest following the surgery to avoid dislodging the patch during the healing process, no evidence was presented at trial that the patch was actually disturbed after the surgery.  Moreover, the plaintiffs’ expert did not testify that the patient’s problems with her senses of smell and taste, or the conditions that necessitated the surgery, were caused by the alleged failure to apprise the patient of the patch or the postoperative care.  Rather, the expert attributed the injuries to damage done during the functional endoscopic sinus surgery.  The Appellate Division noted, however, that the jury exonerated defendants with respect to the manner in which the surgery was performed.  The court also found that there was no evidence presented that the patient could have had a better outcome if the defendant had ordered a CT scan after performing the functional endoscopic sinus surgery.  Thus, to establish a connection between the alleged departures and the claimed injuries, the jury could have relied only on speculation.


Andy Neubardt represented defendants at trial and Dan Ratner handled the appeal.