Vito v. North Medical Family Physicians, P.C.

1040 Appeal from a judgment of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered December 15, 2003 in an action to recover damages for medical malpractice. The judgment granted defendants’ motion for a directed verdict at the close of plaintiffs proof. It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law with costs, the motion is denied, the complaint is reinstated and a new trial is granted in accordance with the following memorandum: Plaintiff commenced this medical malpractice action alleging that defendants were negligent in various aspects of their treatment of his lower back injury. We agree with plaintiffs contention that Supreme Court erred in granting defendants’ motion for a directed verdict at the close of plaintiffs proof. Plaintiff established through expert testimony that the failure of defendant Louis Bonavita, Jr., M.D. to refer him to a specialist from 1996 to 2000 was a departure from good medical practice and that the longer a herniation exists, the worse the prognosis. Plaintiff also established that Dr. Bonavita negligently prescribed narcotics and failed to keep proper records, which led to plaintiff’s addiction and subsequent withdrawal. Plaintiff’s expert testified that Dr. Bonavita’s record keeping deviated from acceptable medical care because it is unclear what narcotics plaintiff was prescribed from 1996 to 2000. Based on his review of plaintiffs medical records, the expert further opined that plaintiff suffered from an addiction to Oxycontin. Plaintiff sought treatment from a hospital emergency room for withdrawal symptoms due to his use of that narcotic, and Dr. Bonavita’s notes reveal that plaintiff complained to defendants that he had withdrawal symptoms. Upon viewing the evidence in the light most favorable to plaintiff, we conclude that there is a rational process by which the jury could have found that Dr. Bonavita was negligent in failing to refer plaintiff to a specialist to determine the cause of his pain after 1996, in failing to keep proper business records and in prescribing and continuing plaintiff on Oxycontin, and that negligence caused plaintiffs damages (see generally Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). We therefore reverse the judgment, deny defendants’ motion for a directed verdict, reinstate the complaint, and grant a new trial before a different justice. All concur except Hurlbutt, J.P, and Smith, J., who dissent in part and vote to modify in accordance with the following memorandum.