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Dr. BK and Dr. JM

In this action for medical malpractice and wrongful death, defendant JH. Dr. BK seeks an order, pursuant to CPLR 4401, 4404 and 5501, setting aside a jury’s liability verdict in favor of plaintiff and award of damages totaling $19,780,000.00
Dr. BK alleges that (a) plaintiff failed to make a prima facie showing of medical malpractice; (b) the liability verdict is against the weight of the evidence; c) a new liability trial is required in order to apportion fault against Downstate Hospital 1; (d) the interest of justice requires a new trial; (e) the awards for pain and suffering and loss of services are excessive and not supported by the evidence; and (f) the award for wrongful death, pecuniary loss, was not proven with reasonable certainty.

Plaintiff opposes the motion. On April 7, 2003 plaintiffs decedent, AT, was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. Within a period of less than 24 hours, Dr. BK performed three open heart surgical procedures on Mr. AT. At trial, plaintiff alleged negligence by Dr. BK in connection with these surgeries, and Dr. BK claimed that hospital staff was negligent in the monitoring and treatment of various infections and complications during Mr. AT’ ensuing five-month hospitalization. Mr. AT died on September 12, 2004, without leaving the hospital.

The jury determined that Dr. BK departed from good and accepted medical practice in failing to inspect Mr. AT’s lung injury for bleeding at the conclusion of the first surgery and in failing to properly test his staple line repair during the second surgery. The jury awarded $6 million for Mr. AT’s conscious pain and suffering, $13 million to Mrs. AT for the loss of Mr. AT’s services and society prior to his death, and $780,000.00 in pecuniary damages on the wrongful death claim. The jury declined to make an award for wrongful death, loss of guidance, on behalf of Mr. AT’s adult children.

In connection with his challenge to the liability verdict, Dr. BK first argues that Dr. JM, plaintiffs expert, was not qualified to opine as to the standard of care governing cardio-thoracic surgeons in New York State. This contention is without merit.

The prevailing standard of care governing the conduct of medical professionals, as articulated by the Court of Appeals in Pike v. Honsinger, requires that a physician exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices, and which is ordinarily regarded by those conversant with the practices as necessary to qualify [the doctor] to engage in the business of practicing medicine or surgery. Although malpractice jurisprudence has evolved to accommodate advances in medicine, the Pike standard continues to serve as the beginning point of any medical malpractice analysis.

To Be Cont…

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