Scandell v. Salerno

— In an action to recover damages for wrongful death and conscious pain and suffering resulting from medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Weiner, J.), entered March 8, 1988, which, upon a jury verdict in favor of the defendant, dismissed the complaint. Ordered that the judgment is affirmed, with costs. The plaintiff’s decedent, Lawrence Scandell, presented himself to the defendant doctor on May 22, 1984, complaining of shortness of breath which became worse with exertion. The defendant diagnosed Scandell’s condition as bronchitis and commenced treatment. He saw Scandell twice more before July 2, 1984, when Scandell died. An autopsy revealed that Scandell died of coronary artery disease. Our review of the record, including the contradictory opinions of the medical experts, reveals that the jury’s determination that the defendant was negligent, but that his negligence was not a proximate cause of the decedent’s death, was not against the weight of the evidence (see, Nicastro v Park, 113 AD2d 129, 133-134; see also, Frank v Fisher, 142 AD2d 665, 666). We further note that the plaintiff failed to object to the trial court’s recharge on proximate cause, so the issue of the propriety of the recharge was not preserved for appellate review (see, CPLR 4110-b). Further, reversal as a matter of discretion is not warranted because the claimed error was not fundamental and did not result in an egregious injustice (see, Waldman v Cohen, 125 AD2d 116; Ferreira v New York City [524] Tr. Auth., 79 AD2d 596; Caceres v New York City Health & Hosps. Corp., 74 AD2d 619, 620; Kazales v Minto Leasing, 61 AD2d 1039, 1040; cf., Galioto v Lakeside Hosp., 123 AD2d 421). In any event, the record reveals that the charge as a whole sufficiently instructed the jury as to the law of proximate cause. Mangano, J. P., Thompson, Spatt and Rosenblatt, JJ., concur.