Practice point: The Appellate Division affirmed the granting of plaintiff's motion to set aside the jury's verdict to the extent of ordering a new trial on one of plaintiff's theories of liability.
The Appellate Division found that the verdict regarding the timing of plaintiff's MRI was at odds with any fair interpretation of the evidence, requiring a new trial on his theory that defendant departed from good and accepted standards of neurosurgical care by failing to immediately obtain an MRI. Defendant failed to explain how waiting nearly 24 hours to examine plaintiff fell within the relevant standard of care. Upon his examination, defendant determined that plaintiff needed a transfer to a better equipped facility. Notably, defendant conceded that plaintiff needed an MRI "right away, that day," although he offered reasons for the delay. However, there were no MRI technicians available to perform scans on weekends, and he took no steps to either call a technician in or have an MRI performed elsewhere until the following day.
Student note: The jury's finding that defendant did not deviate from the standard of care by delaying surgery does not estop plaintiff, at a second trial, from pursuing the theory that defendant failed to timely obtain an MRI. Plaintiff's theory, premised on the timing of the MRI, is independent from his theory regarding the timing of the surgery. To the extent that the questions could result in an inconsistent verdict, defendant failed to object to the wording of the special verdict sheet.
Case: Tom v. Holtzman, NY Slip Op 06477 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Deciding whether a statement is of and concerning the plaintiff in a defamation action.
