Fontana v LaRosa
Attorneys and Parties
Brief Summary
Medical malpractice; trial practice—New York Civil Practice Law and Rules (CPLR) 4401 [authorizes judgment as a matter of law during trial when, viewing the evidence most favorably to the nonmovant, no rational jury could find for that party]; sufficiency of expert testimony and proximate cause.
The Supreme Court, Suffolk County granted defendants' CPLR 4401 motion, ruling plaintiff failed to present competent medical evidence of a deviation from the standard of care or proximate cause.
The judgment dismissing the complaint under CPLR 4401 was reversed; the complaint was reinstated and the case remitted for a new trial before a different Justice.
Plaintiff’s expert, corroborated by medical records, provided a rational basis for a jury to find that stripping the entire lesser saphenous vein to the saphenopopliteal junction deviated from the standard of care and was a substantial factor in causing a peroneal nerve injury and resulting foot drop; the directed verdict was therefore improper. Due to the trial court’s apparent personal displeasure with plaintiff’s counsel and a witness, a new trial must be held before a different Justice.
Background
On March 22, 2001, Gary Fontana underwent a vein-stripping procedure performed by Dr. Charles L. LaRosa. Upon awakening, he lacked sensation in his left leg and could not walk unassisted; he was later diagnosed with foot drop due to weakness/paralysis consistent with peroneal nerve injury. In December 2002, Fontana (and his spouse derivatively) sued LaRosa and Island Surgical and Vascular Group, P.C., alleging negligent injury to the peroneal nerve during the procedure. At trial, plaintiff’s expert James Alexander testified that LaRosa departed from accepted practice by stripping the entire lesser saphenous vein up to the saphenopopliteal junction rather than dissecting at the level of the fascia to reduce nerve-injury risk. Defendants moved for a directed verdict (CPLR 4401) at the close of plaintiff’s case; the court reserved decision, defendants renewed after LaRosa testified.
Lower Court Decision
By order dated August 2, 2021, the Supreme Court granted defendants’ application for judgment as a matter of law under CPLR 4401 [authorizes judgment as a matter of law during trial when, viewing the evidence most favorably to the nonmovant, no rational jury could find for that party], holding plaintiff failed to establish a prima facie case of malpractice as to standard-of-care deviation or proximate cause; judgment dismissing the complaint was entered on August 19, 2021.
Appellate Division Reversal
The appellate court dismissed the appeal from the nonfinal order as nonappealable as of right under CPLR 5701(a)(2) [governs appeals as of right from orders deciding a motion on notice], and reviewed the issues on the appeal from the judgment under CPLR 5501(a)(1) [permits review of nonfinal orders that necessarily affect the final judgment]. On the merits, it held that, viewing the evidence most favorably to plaintiff, there was a rational basis for a jury to find deviation and proximate cause based on the expert testimony and medical records. The court reversed the judgment, denied defendants’ CPLR 4401 application, reinstated the complaint, and remitted for a new trial before a different Justice due to the trial court’s apparent personal displeasure with plaintiff’s counsel and a witness. One bill of costs was awarded to plaintiff.
Legal Significance
Reaffirms the stringent standard for CPLR 4401 directed verdicts: if plaintiff’s expert and record evidence provide any rational basis for a jury to find a deviation from accepted medical practice and proximate causation, the case must go to the jury. Clarifies that expert testimony need not quantify the increased risk or decreased chance of a better outcome to be legally sufficient, so long as it supports an inference that the departure was a substantial factor. Also illustrates appellate management of appealability (CPLR 5701, CPLR 5501) and the remedy of a new trial before a different Justice where the record reflects apparent judicial displeasure that could affect fairness.
A medical malpractice case supported by competent expert testimony linking a specific surgical departure to a nerve injury should not be dismissed on a CPLR 4401 motion; where judicial conduct raises fairness concerns, a new trial before a different Justice is warranted.