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Henkel v. Shields

204 A.D.2d 276 Court N.Y. App. Div. Decision date 1994-05-02 English

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p. 276
Dorothy Henkel, Appellant, v John E. Shields, Respondent.
[614 NYS2d 158]

—In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered December 30, 1991, which, upon a jury verdict, is in favor of the defendant and against her.

Ordered that the judgment is affirmed, with costs.

A jury verdict should not be set aside unless the jury could not have reached the verdict on any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129 ; Delgado v Board of Educ., 65 AD2d 547 , affd 48 NY2d 643 ). Contrary to the plaintiff’s contentions, a reasonable juror could have determined that while the defendant was negligent in prescribing a

p. 277
penicillin-type drug for the plaintiff when his records indicated that she was allergic to penicillin, his negligence was not a proximate cause of her psychiatric condition.

The plaintiff’s remaining contention is unpreserved for appellate review (see, Taylor v Henderson, 175 AD2d 590 ; New England Mut. Life Ins. Co. v Detectives Endowment Assn., 174 AD2d 454 ). Miller, J. P., Altman, Goldstein and Florio, JJ., concur.

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