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Bertram v. Columbia Presbyterian/New York Presbyterian Hospital

126 A.D.3d 473 Court N.Y. App. Div. Decision date 2015-03-10 English

Judges Concur — Friedman, J.P., Sweeny, DeGrasse and Gische, JJ.

Contents

Majority

p. 473
Elliot Bertram et al., Appellants, v Columbia Presbyterian/New York Presbyterian Hospital, Respondent.
[2 NYS3d 790]

Judgment, Supreme Court, New York County (Lucy Billings, J.), entered July 2, 2013, after a jury trial, in favor of defendant and against plaintiffs, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered May 8, 2013, which denied plaintiffs’ posttrial motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiffs allege that two of defendant’s attending physicians committed medical malpractice by failing to remove a femoral arterial line from the then six-week-old infant plaintiffs groin area, resulting in the partial amputation of his left leg.

Plaintiffs failed to preserve their arguments regarding defense counsel’s conduct, as they failed to move for a mistrial before the jury rendered its verdict (see Boyd v Manhattan &

p. 474
Bronx Surface Tr. Operating Auth., 79 AD3d 412 , 413 [1st Dept 2010]). Nor are review and a new trial warranted “in the interest of justice” (CPLR 4404 [a]), since plaintiffs failed to show that defense counsel’s conduct constituted a substantial injustice or that it likely affected the verdict (see Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376 , 381 [1976]; see also Boyd, 79 AD3d at 413 ).

The verdict was not against the weight of the evidence (Lolik v Big v Supermarkets, 86 NY2d 744 , 746 [1995]). Defendant’s witnesses and expert testified that there were contraindications for moving the arterial line, including that the infant remained in critical condition and that he was at risk of uncontrolled bleeding from an incision at another access site. Plaintiffs’ sole expert to testify as to defendant’s alleged malpractice never addressed the contraindications.

Concur — Friedman, J.P., Sweeny, DeGrasse and Gische, JJ.

Motion to strike reply brief denied.

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