Davis v. Nassau Ophthalmic Services, P. C.

—In an action to recover damages for medical malpractice based upon lack of informed consent, the defendants appeal from a judgment of the Supreme Court, Nassau County (Adams, J.), entered April 5, 1995, which, upon a jury verdict, is against them and in favor of the plaintiff in the principal sum of $800,000. Ordered that the judgment is reversed, on the law and as a matter of discretion, without costs or disbursements, and a new trial is granted on the issue of damages only, unless within [359] 20 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to decrease the verdict as to damages from the principal sum of $800,000 to the principal sum of $400,000, and to the entry of an amended judgment accordingly. In the event the plaintiff so stipulates, the judgment, as so reduced and amended, is affirmed, without costs or disbursements. In 1980, the defendant Norman O. Stahl performed a radial keratotomy on the plaintiff’s left eye to correct his myopic vision. The procedure resulted in "overcorrection” such that the eye became farsighted. The resulting disparity between the left eye and the right eye, which remained myopic, damaged the plaintiff’s binocular vision. The jury returned a verdict in favor of the plaintiff on his cause of action for lack of informed consent. Pursuant to Public Health Law § 2805-d, the plaintiff was required to establish that (1) Dr. Stahl failed to disclose the material risks, benefits, and alternatives to the surgery which a reasonable medical practitioner "under similar circumstances would have disclosed, in a manner permitting [the plaintiff] to make a knowledgeable evaluation”, and (2) a reasonably prudent person in the plaintiff’s position would not have undergone the surgery if he or she had been fully informed (Public Health Law § 2805-d [1], [3]; see, Koller v Manhattan Eye, Ear & Throat Hosp., 168 AD2d 671, 672). The alleged qualitative insufficiency of the consent must be supported by expert medical testimony (see, CPLR 4401-a). The qualitative insufficiency of the consent in relation to the status of the procedure at the particular time the surgery was performed was supported by the testimony of the plaintiff’s expert (see, Davis v Caldwell, 54 NY2d 176, 183; Lipsius v White, 91 AD2d 271, 280). Further, there was sufficient evidence from which the jury could conclude that a fully informed, reasonably prudent person in the plaintiff’s situation would not have undergone the surgery (see, Koller v Manhattan Eye, Ear & Throat Hosp., supra, at 672). The plaintiff’s expert, Dr. Ronald Burde, testified that in 1980 radial keratatomy was considered an experimental procedure as it had not been subject to a standard protocol or objective evaluation. In his opinion, to a reasonable degree of medical certainty, the failure to inform a patient that a proposed procedure was experimental constituted a deviation from good and accepted medical practice. While the plaintiff had been [360] informed that this procedure was "new”, a "new” procedure was one which had already gone through the experimental or evolutionary stage. Although Dr. Burde had no knowledge of the sources of information made available to the plaintiff, other than the consent form, there was no testimony that the plaintiff had ever been informed of the experimental nature of the procedure. In fact, the evidence demonstrates that the procedure was presented to the plaintiff in a very positive light with no suggestion that there were unknown risks. The plaintiff testified that, although Dr. Stahl could not guarantee 20/20 vision, he informed the plaintiff that his vision would improve substantially. The booklet provided by Dr. Stahl described the possible complications of the surgery as a mild infection which could be easily cured with eye drops, and glare, a sensation which usually decreased with time. The remainder of the section on complications noted that the Russian ophthalmologist who developed the procedure "ha[d] not experienced any serious complications that in any way compromised visual acuity” in the more than 2,000 surgeries he had performed. The plaintiff was reassured by the booklet. While the plaintiff discussed the procedure with three of Dr. Stahl’s patients who had the surgery, the list of names given to the plaintiff consisted only of satisfied patients. As Dr. Stahl conceded in his testimony, "[y]ou don’t submit reference [sic] of people that don’t like you and you don’t submit reference [sic] of patients that don’t like what you’ve done for them”. Under the circumstances, the plaintiff was not permitted "to make a knowledgeable evaluation” (Public Health Law § 2805-d [1]). The fact that the plaintiff did not specifically testify that he would not have had the surgery had he been informed that the procedure was experimental with unknown risks is not determinative (see, Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199, 207). The test is an objective one—what a reasonably prudent person in the plaintiff’s circumstances would have decided if reasonably informed (see, Zeleznik v Jewish Chronic Disease Hosp., supra, at 207; Public Health Law § 2805-d [3]). The prima facie case established by the plaintiff was then further supported by the testimony of the defendants’ own expert, Dr. Leeds Katzen. Dr. Katzen testified that, in 1980, a patient should have been informed, not only of everything that was known about the procedure to date, but also that "there might be other things that [could] happen * * * It’s an operation that we can’t guarantee the result in, that we don’t know [361] enough about it * * * we don’t know what can happen”. In contrast, Dr. Stahl assured the plaintiff that his vision would improve substantially without informing him that there could be unknown risks. Accordingly, we find that there was sufficient evidence in the record to support the jury verdict (see, Lipsius v White, supra). Further, the verdict was not against the weight of the evidence as it was based on a fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129, 134). The defendants’ claim that errors and omissions in the charge and verdict sheet require reversal is unavailing since the defendants not only failed to except to any of the alleged errors of which they now complain but acquiesced in the submission to the jury of the charge that was given and the verdict sheet (see, Parkin v Cornell Univ., 78 NY2d 523, 530-531; Freidus v Eisenberg, 71 NY2d 981, 982; Syrkett v Burden, 176 AD2d 938, 939-940). Similarly, the defendants made no objection to the various comments made by the plaintiff’s counsel in his opening and summation, and while some of the remarks would have been better left unsaid, the cumulative effect of those comments and that portion of the cross-examination of Dr. Katsen to which the defendants objected was not so egregious as to warrant reversal. We do find, however, that the amount of damages awarded to the plaintiff deviates materially from what would be reasonable compensation, and is, therefore, excessive to the extent indicated (see, CPLR 5501 [c]). Miller, J. P., O’Brien and Altman, JJ., concur.