Datiz v. Shoob , 125 A.D.2d 628 ( 1986 )

— In an action to recover damages for medical malpractice, the defendant M. Philip Shoob appeals from (1) a judgment of the Supreme Court, Queens County (Sacks, J.), entered October 2, 1984, which, upon a jury verdict, is in favor of the plaintiff and against him; and (2) an order of the same court, dated July 18, 1984, which denied his motion, inter alia, to set aside the verdict as unsupported by the weight of the evidence.

Ordered that the judgment entered October 2, 1984, is affirmed; and it is further,

Ordered that the appeal from the order dated July 18, 1984, is dismissed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

After a jury trial on the infant plaintiff’s medical malpractice claims, the defendant M. Philip Shoob, a pediatrician, was determined to have committed malpractice in the diagnosis and treatment of the infant plaintiff Marisol Datiz. The infant plaintiff’s case for liability against Shoob and certain other physicians was premised upon the alleged failure to diagnose a degenerative condition known as congenital hip dislocation. The record discloses that within one day of the plaintiff’s birth, Shoob, director of pediatrics at Terrace Heights Hospital performed a pediatric newborn examination of the plaintiff at the request of the mother’s obstetrician and noted certain abnormalities in the child’s knee and ankle attributable to a muscular dysfunction characterized by a laxity of the ligaments and diminished muscle tone, known as hypotonia.

At trial, Shoob conceded that he had been the child’s primary treating physician during the first four days of the infant plaintiff’s life. Shoob then terminated his relationship with the plaintiff, who commenced treatment with the orthopedist to whom Shoob had referred her, codefendant Maccab Boorstein. Shoob testified that he performed a complete pediatric newborn examination of the plaintiff and employed the so-called "Ortolani and Barlowe” hip manipulation procedures, the medically accepted means by which an examining physician can ascertain if an infant is suffering from congenital hip dislocation. Shoob found no abnormalities in the plaintiff’s hips. The question as to whether the defendant Shoob had actually performed the Barlowe maneuver was hotly contested, with experts offering various opinions premised upon a description of Shoob’s pediatric examination that he had provided in a deposition. There was no dispute at trial, however, that the failure to administer the Barlowe maneuver would represent a departure from good and accepted medical practice and constitute malpractice.

After examining the plaintiff and ascertaining the existence of abnormalities in the knee and ankle, Shoob referred the child to Boorstein, who had diagnosed the plaintiff, the day after she was born, as being afflicted with " 'Floppy’ child syndrome”, a colloquial description referring to the hypotonia he found to exist in the plaintiff’s knees and ankles. Significantly, there was testimony at trial that hypotonia or laxity in the ligaments can be a principal cause of congenital hip dislocation. Boorstein, who treated the child until she reached approximately five months of age, diagnosed no problem in the hips. Thereafter, the plaintiff was treated by certain other physicians. The diagnosis of congenital hip dislocation, however, was not definitively made until the plaintiff was BVz years of age in 1978.

In November 1979, the plaintiff commenced the instant medical malpractice action alleging, inter alia, that the defendants negligently failed to diagnose her congenital hip dislocation condition. Following a trial, the jury found in the plaintiff’s favor, determining that Shoob’s proportionate share of the liability in the case was 10%. Shoob now appeals on the principal ground that the evidence at trial was insufficient to sustain the jury’s verdict.

In order for a court to conclude, as a matter of law, that a

jury verdict is not supported by sufficient evidence, it is necessary to find that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499; see, Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528, 532). Moreover, the evidence must be reviewed on appeal most favorably to the plaintiff in whose favor the jury’s verdict was rendered (see, Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379; Fotiu v Ewing, 90 AD2d 602).

With the aforesaid principles in mind, we note that there was evidence from which the jury could infer that the hip infirmity afflicting the plaintiff is principally congenital in nature; that it is manifestly diagnosable from birth in the majority of cases; that the anomaly affects female infants at a much higher rate than it does males; and that the diagnosed presence of hypotonia at birth in the lower extremities dramatically heightened the probability that the plaintiff was, in fact, afflicted with a diagnosable form of congenital hip dislocation at the time Shoob performed the pediatric examination. The question whether Shoob did or did not properly perform the Barlowe maneuver was, of course, an issue for the jury’s resolution. Based upon the foregoing evidence, and the record as a whole, we cannot say that there was "no valid line of reasoning * * * which could possibly lead rational men to the conclusion reached by the jury” (Cohen v Hallmark Cards, supra, p 499). Accordingly, the jury’s verdict will not be disturbed.

Moreover, we reject the contention that Shoob’s failure to diagnose was not a proximate cause of the plaintiff’s injury or that because Shoob made a referral to an expert his omission could not form the basis of the partial liability attributed to him. At bar, the jury could have reasonably concluded that had Shoob conducted a proper pediatric examination and administered the Barlowe maneuver he would have discovered the existence of the infirmity within hours of the infant’s birth and thus would have facilitated the immediate commencement of treatment by the consulting orthopedist, who himself subsequently failed to diagnose the condition. In light of the consulting expert’s failure to diagnose the condition, and considering Shoob’s independent duty to conduct a proper pediatric examination, there is a reasonable connection between his failure to diagnose and the ultimate injury sustained by the plaintiff.

We have reviewed Shoob’s remaining contentions and find them to be without merit. Lazer, J. P., Rubin and Kooper, JJ., concur.