`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`Short Form Order
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`NEW YORK STATE SUPREME COURT - QUEENS COUNTY
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`Present: (cid:9)
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`HONORABLE JOSEPH J. ESPOSITO
`Justice
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`Part 26
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`X
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`Plaintiff,
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`ELZA GARZON,
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`- against - (cid:9)
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`STEVEN BATASH and (cid:9)
`STEVEN BATASH, M.D., P.C., (cid:9)
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`Index •
`Number: (cid:9)
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`700736/15
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`Motion Date: 5/4/17
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`Motion
`Cal. Number: 37
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`Defendants. (cid:9)
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`Motion Seq.: 1
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`X
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`The following papers numbered 1 to 3 were read on this post-trial motion by defendant to set aside
`the jury verdict in this action as excessive.
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`Notice of Motion-Affirmation-Exhibits (cid:9)
`Opposition-Affirmation-Exhibits (cid:9)
`Reply(s) (cid:9)
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`Papers
`Numbered
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`t
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` 1
`2
` 3
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`IQ
`v
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`SP
`COON
`QtfEeNS CeLEkk
`CONTI,
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`Upon the foregoing papers numbered 1 to 3, it is ordered that the motion pursuant to CPLR 4404(a)
`to set aside the jury verdict in this action as excessive and against the weight of, the evidence and
`set this action down for a new trial on the issue of monetary damages, is decided as follows:
`
`Plaintiff, a 49 year old female, was injured during an endoscopy performed by defendant, Dr. Steven
`Batash on June 29, 2014. Following the procedure, plaintiff experienced abdominal pain and
`discomfort, nausea, and vomiting. She was told that her post-endoscopy discomfort was normal and
`was sent home after the vomiting subsided. She required the assistance of her daughter and a nurse
`to walk out of the facility. Once plaintiff arrived home she continued to experience a burning
`sensation, and vomited again. After unsuccessfully attempting to contact Dr. Batash and the
`endoscopy facility, plaintiff's daughters brought her to the emergency room. A CT scan revealed
`a perforation of a duodenal diverticulum. Plaintiff required emergency surgery to repair the
`perforation. Plaintiff testified that after being informed she would require surgery she feared for her
`life. Her surgery incision was closed with eighteen staples. Following surgery, plaintiff was
`confined to her hospital bed and required a urinary catheter, an NG tube, and a feeding tube for
`approximately four to five days. She could not move at all and required injections to prevent blood
`clots. She remained hospitalized for nine days post-surgery. Upon discharge from the hospital she
`was prescribed a pain killer which she took for five days. A week later she had to return to the
`hospital due to nausea and vomiting. She was hospitalized for one night. Doctors removed her
`surgical stitches during the second hospitalization. She required assistance from her daughters to
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`FILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AM
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`perform basic tasks for the first month after her hospitalization. Ms. Garzon attended physical
`therapy sessions three times a week for approximately six to seven weeks. She was able to return
`to work after two and one half months but had to wear a brace and could not perform all of her
`formerjob duties such as lifting heavy objects. Plaintiff has a seven and one-half inch surgical scar.
`When she sees the scar it reminds her of her experience. She has also avoided getting a
`recommended colonoscopy because this experience had made her fear possible complications.
`Plaintiff currently experiences occasional pain that she testified was, "very small," "comes and
`goes," and is, "nothing serious now." Plaintiff also testified at her June 4,2015 deposition that she
`had no physical complaints related to the perforation and that she had no loss of activities as a result
`of her injury.
`
`Plaintiffs expert, Dr. Theodore Perlman testified that plaintiff's scar is permanent and that although
`plaintiff is not currently experiencing any pain in the area of the scar, the procedure and resulting
`internal scar tissue may increase plaintiffs chances of experiencing future complications such as
`small bowel obstruction, hernias in the area of the incision, bacterial overgrowth, and intestinal
`discomfort. Doctor Perlman testified that he does not know if any of these complications will ocdur
`in the future, but there is an increased risk. His statements were purely speculative and he could not
`specify the level of increased risk.
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`After the trial, the jury returned a verdict in favor of the plaintiff, finding that defendant Steven
`Batash had departed from good medical practice in performing the June 29, 2014 endoscopy and thaf
`the departure was a substantial factor in causing plaintiffs injuries. The jury awarded plaintiff
`$1,500,000 for past pain, suffering and loss of enjoyment of life, and $1,000,000 for future pain,
`suffering and loss of enjoyment of life (over 33.5 years).
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`Defendants now move pursuant to CPLR 4404(a) and 5501(c) to reduce or set aside the verdict as
`deviating materially from reasonable compensation for plaintiff's injuries. Defendants do not
`challenge the jury's finding of liability against defendants.
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`Pursuant to CPLR 4404(a), upon the motion of any party,"the court may set aside a verdict or any
`judgment entered thereon ...or it may order a new trial of a cause of action or separable issue where
`the verdict is contrary to the weight of the evidence, in the interest of justice...." "The amount of
`damages to be awarded to a plaintiff for personal injuries is a question for the jury, and the jury's
`determination will not be disturbed unless the award deviates materially from what would be
`reasonable compensation," (Scaccia v. Bieniewicz, 151 A.D.3d 900.) In evaluating whether an
`award materially deviates from what would be reasonable compensation, the court should look to
`the standard set forth in CPLR 5501(c). Although CPLR 5501(c) expressly addresses the Appellate
`Division's authority to overturn a jury's damages verdict, its "material deviation" standard has also
`been applied to trial courts (see Osiecki v Olympic Regional Dev. Auth., 256 AD 2d 998; see also
`Cochetti v Gralow, 192 AD 2d 974).
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`In determining whether an award constitutes a material deviation from reasonable compensation, the
`Court is required to compare the jury's verdict to those verdicts resulting from factually similar
`situations (see Donlon v City of New York, 284 AD 2d 13).
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`FILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AM
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`Defendant cites several cases with comparable injuries.
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`In Greco v O'Connor, (2009 WL 9053585, 2009 WL 5667220), the 74 year old plaintiff suffered a
`bowel perforation during a colonoscopy. Six days later she was admitted to the hospital with a
`bowel perforation that required colostomy and subsequent colostomy reversal that required a nine
`day hospital admission as well as incision site hernias necessitating two additional surgeries. The
`jury awarded plaintiffs a total of $500,000 ($300,000 for past pain and suffering, $150,000 for future
`pain and suffering and $50,000 on husband's loss of services claim) .
`
`In Arasin v Mehlman, (2007 WL 7952740), the 45 year old plaintiff sustained a rectal tear during
`a colonoscopy. She experienced pain in the buttocks, nausea, vomiting and dry-heaves. She was
`forced to undergo surgery to repair the rectal tear which necessitated a five day hospital stay.
`Following surgery, plaintiff required the assistance of family members to perform household duties.
`She missed three weeks from work and was forced to limit her activities when she returned to work.
`The jury awarded her $475,000 for past pain and suffering. Defendant's motion to set aside or
`reduce the verdict was denied by the trial court.
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`In DeRosa v Kaali, (240 A.D.2d 534 [1997]), the plaintiff sustained a perforated bowel during tubal
`ligation surgery. Plaintiff required a second surgery to repair the perforation. The jury awarded
`plaintiff $300,000 for past pain and suffering and $680,000 for future pain and suffering On appeal,
`the Appellate Division 2nd Dept. reduced the award for future pain and suffering to $150,000.
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`Plaintiff also cites past cases in support of their contention that the fury award does not deviate
`materially from a reasonable award
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`In Pizarro v Mendelsohn and Katz, (2013 WL 3214182), the plaintiff suffered four perforations of
`his colon and small intestine following a colonoscopy performed by co-defendant, Dr. Mendelsohn.
`Three of the perforations were surgically repaired by co-defendant, Dr. Katz. Following the repair
`surgery, plaintiff was hospitalized for several days and continued to experience severe abdominal
`pain. A second surgery was required to repair a fourth perforation in plaintiffs small intestine that
`Dr. Katz had failed to discover during the first surgery. Plaintiff was unable to return to work for
`six months and experienced an open abdominal surgical wound that did not heal for over six months
`and required cleaning multiple times per day. Plaintiff also continued to experience pain three to
`four times a week through the time of trial nearly six years later. The jury split liability 60/40
`between the two doctors, and awarded plaintiff a total of $1,500,000 in damages. The case later
`settled for $1,350,000.
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`In Lee as Aministratrix of Lee v New York Hospital Queens, (118 A.D.3d 750 [2014]), the
`plaintiff's decedent was admitted to the defendant hospital with a diagnosis of gallstones and an
`inflamed gallbladder. He was scheduled for surgery the day after he was admitted to the hospital,
`however the surgery was repeatedly delayed. Plaintiffs decedent was kept in the hospital for four
`days without being provided food or drink by mouth in preparation for the surgery. Four days after
`being admitted to the hospital, he developed systemic sepsis and while being intubated, suffered full
`cardiac arrest and died 48 minutes later. During his hospital stay the decedent complained of
`increasingly sharp pain, discomfort, hunger, difficulty breathing, and a sense of impending death.
`The jury awarded $5,000,000 for plaintiffs decedent's conscious pain and suffering. Upon post trial
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`FILED: QUEENS COUNTY CLERK 09/28/2017 11:05 AM
`NYSCEF DOC. NO. 22
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`INDEX NO. 700736/2015
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`RECEIVED NYSCEF: 09/28/2017
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`motion, the trial judge granted a new trial unless plaintiff agreed to a reduction of that portion of the
`jury's verdict to $3,750,000. The Appellate Division Second Department affirmed the trial court on
`that issue, finding that the award of $3,750,000 for decedent's conscious pain and suffering did not
`deviate materially from what would be reasonable compensation.
`
`In Pavlovich v Wycoff Heights Medical Center and Blank, M.D. (2002 WL 6759690), the plaintiff
`suffered a perforation of the sigmoid colon during a procedure performed by defendant Blank. The
`perforation necessitated further surgeries to correct the perforation, a colostomy and colostomy
`reversal. During the colostomy reversal, plaintiff suffered nerve injury in her right leg which
`required physical therapy. Following the surgeries, plaintiff suffered deep depression, anxiety,
`psychotic behavior, low self esteem and hallucinations and loss of independence; all symptoms she
`had not previously experienced. Her psychiatric symptoms necessitated individual and group
`psychotherapy and medication. The therapy sessions were initially three times per week. She was
`still receiving twice weekly psychotherapy and taking antidepressants and anti anxiety medication
`at the time of trial, over five years later. The jury awarded plaintiff $3,250,000 for her pain and
`suffering.
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`After reviewing the trial testimony and the cases cited by the parties it is the Court's opinion that the
`amounts awarded by the jury for past pain and suffering and for future pain and suffering both
`materially deviate from reasonable compensation for plaintiffs injuries in this action. Upon review
`of the cases cited, the Court finds that the injuries suffered by the plaintiff in this aciton more closely
`resemble those suffered by the plaintiffs in the cases cited by defendant than those suffered by the
`plaintiffs in the cases cited by plaintiff. The injuries suffered by the plaintiffs in the cases cited by
`plaintiff, including colostomies, years of physical pain, a wound that remained open for six months,
`a lifetime of psychiatric therapy, and three days of starvation in anticipation of a surgery that
`ultimately did not occur due to plaintiffs death, were all far more serious than plaintiffs injuries in
`this action.
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`In view of the foregoing, defendant's motion to set aside the damages verdict for past and future pain
`and suffering in this action is granted and a new trial ordered solely on the issues of damages for
`plaintiffs past and future pain and suffering, unless within 20 days of service of a copy of this order
`with notice of entry by defendant upon plaintiff, plaintiff serves and files with the Clerk of the Court,
`a written stipulation consenting to a reduction of the damages awards from $1,500,000 for past pain
`and suffering to $550,000 and from $1,000,000 for future pain and suffering to $100,000.
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`The foregoing constitutes the decision and order of the court.
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`Dated: September 25, 2017
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`HON. JO
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