166 A.D.3d 1401

Supreme Court, Appellate Division, Third Department, New York.

Roberta May O'CONNOR, as Administrator of the Estate of Robert J. O'Connor, Deceased, et al., Respondents,


KINGSTON HOSPITAL, Appellant, et al., Defendants.


Calendar Date: October 11, 2018Decided and Entered: November 29, 2018


Background: Patient's estate brought medical malpractice action against hospital, alleging that hospital staff departed from the accepted standard of nursing care by failing to prevent and treat patient's pressure ulcers prior to his death from cancer. Hospital moved for summary judgment, and the Supreme Court, Ulster County, Cahill. J., denied the motion. Following a jury trial, the Supreme Court, Ulster County, Mott, J., entered judgment in favor of patient's estate and award of $500,000 for past pain and suffering, and denied hospital's motion to set aside the verdict or, alternatively, a motion for a new trial. Hospital appealed.

Holdings: The Supreme Court, Appellate division, McCarthy, P.J., held that:

1 summary judgment affidavit of registered nurse was sufficient raise a triable issue of fact;

2 trial court acted within its discretion in admitting testimony of registered nurse;

3 evidence supported the verdict; and

4 award was not excessive.


Attorneys and Law Firms

**681 Sholes & Miller, LLP, Poughkeepsie (Robert Irving Miller of counsel), for appellant.

The Berkman Law Office, LLC, New York City (Norman Steiner of counsel), for respondents.

Before: McCarthy, J.P., Egan Jr., LynchMulvey and Rumsey, JJ.



McCarthy, J.P.

*1401 Appeal from a judgment of the Supreme Court (Mott, J.), entered July 7, 2015 in Ulster County, upon a verdict rendered in favor of plaintiffs.

In December 2008, Robert J. O'Connor (hereinafter decedent) was admitted to defendant Kingston Hospital (hereinafter defendant) and, shortly thereafter, diagnosed with cancer. Over the following month, decedent was treated by defendant as an inpatient during two discrete periods, separated by approximately 10 days when he was discharged and remained at home. After his death from cancer, which is not at issue on this appeal, decedent's wife (hereinafter plaintiff)1 commenced this action against defendant, among others, alleging, as relevant here, malpractice based on defendant's failure to prevent decedent from developing pressure ulcers (commonly known as bedsores) and to properly treat them. In response to motions not relevant here, defendant cross-moved for, among other things, summary judgment dismissing the complaint. Supreme Court (Cahill, J.), among other things, denied defendant's cross motion.

At the conclusion of a trial that proceeded against defendant alone, the jury found that defendant departed from accepted standards of nursing practice and that the departure proximately caused decedent's injuries. The jury determined that decedent's damages for conscious pain and suffering amounted to $500,000. Thereafter, defendant moved to set aside the verdict and enter judgment in its favor as a matter of law or, alternatively, for a new trial. Supreme Court (Mott, J.) denied that motion and, accounting for a setoff, entered a judgment against defendant for $332,460.60. Defendant appeals.

Supreme Court (Cahill, J.) properly denied defendant's cross *1402 motion for summary judgment. Defendant satisfied its initial burden through submission of, among other things, the affidavit of a physician who opined that defendant's staff did not deviate from the standard of care and did not contribute to any injury decedent may have suffered. The burden then shifted to plaintiff to raise a triable issue of fact (seeZuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; **682 DiBartolomeo v. St. Peter's Hosp. of the City of Albany, 73 A.D.3d 1326, 1326, 901 N.Y.S.2d 389 [2010] ).

Plaintiff submitted the affidavit of Lorrinda Tanious, a registered nurse for over 35 years with experience treating patients for bedsores. Based on her review of the records, Tanious opined, to a reasonable degree of nursing certainty, that defendant's treatment of decedent deviated from good and prudent nursing care. She asserted and explained how the skin cream used to treat decedent's wounds was improper, the admitting physician did not perform a proper examination and the medical records did not accurately reflect decedent's condition. She also asserted that defendant did not order an air mattress or other mattress that would prevent further wounds and defendant should have instituted an order to turn decedent every two hours. She further averred that these deviations from the standard of care caused decedent's condition to worsen and, had he received proper care, the pressure ulcers would not have formed or progressed as they did.

1Tanious was qualified to opine regarding defendant's deviations from the accepted standard of good nursing care (see Zak v. Brookhaven Mem. Hosp. Med. Ctr., 54 A.D.3d 852, 853, 863 N.Y.S.2d 821 [2008]Muskopf v. Maron, 309 A.D.2d 1232, 1233, 764 N.Y.S.2d 741 [2003] ). She was also qualified to render an opinion on whether those deviations failed to prevent or to properly treat decedent's pressure ulcers, based on testimony that the causes and treatment of bedsores are within the scope of knowledge, practice and experience of a registered nurse (compare Zak v. Brookhaven Mem. Hosp. Med. Ctr., 54 A.D.3d at 853, 863 N.Y.S.2d 821 [nurse was qualified to opine regarding the impropriety of giving a medication without a doctor's order but was not qualified to opine as to whether giving that medication caused an injury separate from the patient's underlying condition]; Mills v. Moriarty, 302 A.D.2d 436, 436, 754 N.Y.S.2d 901 [2003], lv denied100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ). The competing expert opinions created questions of credibility that could only be resolved at a trial (see Moyer v. Roy, 152 A.D.3d 1188, 1189–1190, 57 N.Y.S.3d 867 [2017]Cummings v. Brooklyn Hosp. Ctr., 147 A.D.3d 902, 904, 48 N.Y.S.3d 420 [2017] ). Although defendant is correct that some of Tanious' factual assertions were not consistent with the record, her affidavit contained enough facts and opinions that were supported by *1403 the record to raise a triable issue of fact regarding whether defendant departed from the accepted standard of nursing care and, if so, whether such departures caused decedent any injury. Thus, Supreme Court properly denied defendant's cross motion for summary judgment.

23At trial, Supreme Court (Mott, J.) had discretion to admit Tanious' testimony, and it did not abuse that discretion in determining that she possessed the requisite training, education, knowledge and experience to qualify as an expert in the field of nursing care (seeMatter of April WW. [Kimberly WW.], 133 A.D.3d 1113, 1115, 21 N.Y.S.3d 379 [2015] ). Defendant's arguments about her lack of expertise go to the weight of her testimony and expert opinions, not their admissibility (see Hranek v. United Methodist Homes of Wyo. Conference,27 A.D.3d 879, 880, 810 N.Y.S.2d 544 [2006]; cf. Matter of Sarro v. State of N.Y. Dept. of Health Admin. Review Bd. for Professional Med. Conduct, 113 A.D.3d 968, 969–970, 979 N.Y.S.2d 188 [2014] ). Tanious testified that defendant deviated from the accepted standard of nursing care by failing to properly and consistently calculate decedent's Braden score (which predicts a patient's risk of **683 developing pressure ulcers), to provide him with an air mattress and to reposition him often enough. She further testified that these deviations caused decedent's pressure ulcers to become worse. Her opinions did not exceed the boundaries of her expertise nor intrude into matters that required testimony from a physician (cf. Matter of Sarro v. State of N.Y. Dept. of Health Admin. Review Bd. for Professional Med. Conduct,113 A.D.3d at 969, 979 N.Y.S.2d 188; compare Zak v. Brookhaven Mem. Hosp. Med. Ctr., 54 A.D.3d at 853, 863 N.Y.S.2d 821). Tanious' testimony was not speculative. Although some of her testimony was not in accordance with the medical records, she opined that defendant's staff did not keep accurate medical records and explained the bases for that belief. Accepting the jury's credibility finding in favor of Tanious over defendant's expert physician, and considering the medical records and plaintiff's factual testimony, we disagree with defendant's arguments that it was entitled to a directed verdict or to have the verdict set aside or that the verdict was against the weight of the evidence (see Hattem v. Smith, 111 A.D.3d 1107, 1109–1110, 977 N.Y.S.2d 411 [2013]Garrison v. Lapine, 72 A.D.3d 1441, 1443, 900 N.Y.S.2d 770 [2010]; see also CPLR 4404[a] ).

45Finally, the jury's damage award was not excessive and was supported by the evidence. “An award of damages is a factual determination to be made by the jury and is accorded deference unless ‘it deviates materially from what would be reasonable compensation’ ” (Garrison v. Lapine, 72 A.D.3d at 1442, 900 N.Y.S.2d 770, quoting CPLR 5501[c]; see *1404 Marin v. New York City Health & Hosps. Corp., 145 A.D.3d 484, 486, 43 N.Y.S.3d 289 [2016], lv denied 29 N.Y.3d 913, 2017 WL 2750645 [2017] ). A challenge to damages will only be successful where the record evidence “preponderate[s] in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence” (Garrison v. Lapine, 72 A.D.3d at 1442, 900 N.Y.S.2d 770 [internal quotation marks and citation omitted] ).

6At trial, plaintiff testified that decedent uncharacteristically complained to her about pain from his bedsores. She stated that the pain was so bad that decedent could not walk. The records from the hospital to which decedent was transferred after leaving defendant indicate that decedent complained of pain when touched on the buttocks and that his lower back pain was a 10 on a scale of 1 to 10. Tanious testified that the type of wound that decedent experienced would naturally be painful. Photographs admitted into evidence demonstrate the heinous nature of the open wounds afflicting decedent during the final weeks of his life, as he lay dying of cancer. Medical records also established that decedent required surgical procedures to remove dead tissue from his pressure ulcers. To support its position, defendant points to evidence showing that decedent was not in pain at times during his admission, received pain medication and was experiencing pain related to his cancer and other ailments, rather than the pressure ulcers. “[R]ecognizing that damage awards for pain and suffering are inherently subjective and not subject to precise quantification or formulas,” and according appropriate deference to the jury's determination, the jury's award was within the range of reasonable compensation (id. at 1443, 900 N.Y.S.2d 770).

ORDERED that the judgment is affirmed, with costs.

Egan Jr., LynchMulvey and Rumsey, JJ., concur.