WEINSTEIN v. NEW YORK HOSPITAL

The awards for past pecuniary damages is vacated, on the law, since those expenses were paid for by plaintiff's mother, who was not legally obligated to do so and who did not assert a derivative claim (see,Bani-Esraili v. Lerman, 69 N.Y.2d 807).

According deference to the jury's resolution of conflicting expert testimony (see, Hill v. Liford, 215 A.D.2d 252), a fair interpretation of the evidence supports the findings that defendants were negligent in not repeating arterial blood gas studies between 8:47 P.M. and 10:00 P.M., and in not arranging for intubation after receiving the first such study, and that such negligence was a proximate cause of plaintiff's infirmities. In particular, the jury could fairly reject defendant's contention that viral encephalitis was the root cause of plaintiff's infirmities when the objective tests performed could not substantiate that diagnosis, and fairly rely on the multiple entries in the medical records indicating that an emergency intubation had been performed due to respiratory arrest in preference to testimony that such notations were incorrect.

Because defendant failed to object to the now challenged testimony of plaintiff's medical experts in a timely and specific manner, any claim of error with respect to the admissibility of that testimony is not preserved for appellate review (see, Simon v. Indursky, 211 A.D.2d 404, 405). In any event, the objection that materials relied upon by the experts were never admitted into evidence is unpersuasive, since such materials were used primarily to confirm conclusions that the experts had already reached from their own examinations of plaintiff and the properly admitted hospital records (see, Ferrantello v. St. Charles Hosp. Rehabilitation Center, 275 A.D.2d 387, 712 N.Y.S.2d 615).

The awards for pain and suffering deviate materially from what is reasonable compensation under the circumstances (cf., Vasquez v. Figueroa, 262 A.D.2d 179, 180; Bermeo v. Atakent 241 A.D.2d 235, 240, citing Cruz v. Mt. Sinai Hosp., 191 A.D.2d 325). The awards for future pecuniary damages are excessive to the extent indicated, in view of the testimony of plaintiff's mother.

In the event plaintiff does not stipulate to the reduction, and opts for a new trial, he should not be allowed to seek lost earnings and other items of claimed pecuniary damages stricken by the trial court for deficiencies in proof (see, Outeiral v. Otis Elev., 220 A.D.2d 255).

We have considered defendant`s other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.