        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

927
CA 13-02149
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


MARY BEEBE AND ROBERT BEEBE,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                              MEMORANDUM AND ORDER

ST. JOSEPH’S HOSPITAL HEALTH CENTER,
DEFENDANT,
ASSOCIATES FOR WOMEN’S MEDICINE, PLLC,
CHRISTOPHER LARUSSA, M.D.,
DEFENDANTS-APPELLANTS-RESPONDENTS,
AND SUCHITRA KAVETY, M.D., DEFENDANT-RESPONDENT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (MICHAEL P. RINGWOOD
OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

KUEHNER LAW FIRM, PLLC, SYRACUSE (KEVIN P. KUEHNER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Deborah H. Karalunas, J.), entered September 4, 2013.
The order, among other things, granted in part plaintiffs’ posttrial
motion and ordered a new trial as to defendants Christopher LaRussa,
M.D. and Associates for Women’s Medicine, PLLC.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the posttrial motion in its
entirety and reinstating the verdict in its entirety, and as modified
the order is affirmed without costs.

     Memorandum: Plaintiffs commenced this medical malpractice action
seeking damages for injuries sustained by Mary Beebe (plaintiff) as
the result of an infection that developed following an emergency
cesarean section. Defendant Christopher LaRussa, M.D., performed the
cesarean section and provided pre- and postoperative care to
plaintiff. Defendant Suchitra Kavety, M.D., discharged plaintiff from
the hospital following the cesarean section and spoke to plaintiff on
the telephone several hours following the discharge. At the time, Dr.
LaRussa and Dr. Kavety were employed by defendant Associates for
Women’s Medicine, PLLC (Associates).

     Plaintiffs alleged that plaintiff’s postoperative infection was
the result of Dr. LaRussa’s negligence in ordering and administering a
single antibiotic prophylaxis for the cesarean section rather than
dual antibiotic prophylaxis, and in failing to order appropriate
                                 -2-                           927
                                                         CA 13-02149

testing and treatment for plaintiff at a follow-up office visit.
Plaintiffs alleged that Dr. Kavety was negligent in discharging
plaintiff without conducting further inquiry into the drainage from
the surgical incision, and in failing to direct plaintiff to go to the
emergency room after plaintiff reported certain symptoms during the
telephone call on the day of discharge. A jury trial was conducted,
and the jury returned a verdict finding that neither Dr. LaRussa nor
Dr. Kavety was negligent. Supreme Court subsequently granted
plaintiffs’ posttrial motion to set aside the verdict insofar as
plaintiffs sought “a new trial . . . as to [Dr. LaRussa], and also as
to [Associates]” for the latter’s “vicarious liability.”

     We conclude that the court erred in granting that part of
plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa
and Associates on the ground that it should not have given an error in
judgment charge to the jury with respect to Dr. LaRussa’s alleged
malpractice in failing to order and administer dual antibiotic
prophylaxis for the cesarean section, and on the alternative ground
that the verdict in favor of Dr. LaRussa was against the weight of the
evidence. We therefore modify the order accordingly. Based upon Dr.
LaRussa’s testimony that he exercised his professional judgment in
choosing between acceptable alternatives, along with expert testimony
that there were such acceptable alternatives, we conclude that the
court properly gave an error in judgment charge (see Scofield v
Moreland, 23 AD3d 1082, 1082; Graney v Ryan, 19 AD3d 1172, 1173).
There was also evidence that Dr. LaRussa considered and chose between
medically acceptable treatment alternatives at plaintiff’s
postoperative office visit, and thus the charge was also appropriately
given with respect to his postoperative care of plaintiff (see Graney,
19 AD3d at 1173; Petko v Ghoorah, 178 AD2d 1013, 1014). Furthermore,
we conclude that “the preponderance of the evidence in favor of
plaintiff[s] is not so great that the verdict [finding that Dr.
LaRussa was not negligent] could not have been reached upon any fair
interpretation of the evidence” (Kettles v City of Rochester, 21 AD3d
1424, 1425).

     Contrary to plaintiffs’ contention on their cross appeal, the
court properly denied their posttrial motion insofar as it sought an
order setting aside the verdict in favor of Dr. Kavety. We conclude
that the court properly gave an error in judgment charge with respect
to Dr. Kavety’s conduct in discharging plaintiff and thereafter
“electing to wait and observe her condition rather than undertaking
immediate [treatment or testing]” upon receiving plaintiff’s telephone
call (Lenzini v Dessler, 48 AD3d 220, 221). Finally, the verdict in
favor of Dr. Kavety is supported by a fair interpretation of the
evidence (see Radish v DeGraff Mem. Hosp., 291 AD2d 873, 874).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
