Berger v. Bronsky

Judgment, Supreme Court, New York County (Carol R. Edmead, J., and a jury), entered April 22, 2009, in favor of defendant-respondent, unanimously affirmed, without costs. While plaintiff’s expert testified that the failure to take X rays was a departure from the accepted standard of orthodontic practice and that X ray monitoring would have shown rapid deterioration of plaintiff’s condition, he did not specifically opine on whether that departure caused plaintiffs injury, and the record otherwise lacks evidence of causation for those departures. Thus, the trial court properly refused to submit to the jury whether defendant was negligent in not radiographically monitoring plaintiffs progress during treatment (see Stanski v Ezersky, 228 AD2d 311, 312 [1996], lv denied 89 NY2d 805 [1996]; Georgetti v United Hosp. Med. Ctr., 204 AD2d 271, 272 [1994]). Plaintiff failed to preserve her contention that the trial court erred in excluding evidence that defendant’s initiation of orthodontic treatment was negligent, and we decline to review it. Further, considering the jury’s findings that defendant had obtained plaintiffs consent to the treatment plan and the defendant’s continuation of orthodontic treatment was not negligent, the error was harmless. Elaintiff’s other contentions are either not preserved or without merit. Concur—Tom, J.P., McGuire, Moskowitz, Acosta and Freedman, JJ.