Adeline Sternemann v. Harold Langs Et Al‪.‬

In a medical malpractice action, defendants Langs, Mesbah and Singh appeal from a judgment of the Supreme Court, Kings County (Monteleone, J.), dated May 19, 1981, which, upon a jury verdict, was in favor of the plaintiff and against them in the principal sum of $2,026,000. Judgment affirmed, with costs. This is a medical malpractice action in which the plaintiff allegedly sustained an injury to her ulnar nerve during an operation to remove her right first rib and right cervical rib resulting in a condition known as causalgia. The jurys finding with respect to the second interrogatory submitted to it, which determined that the plaintiff sustained her burden of proving malpractice on the part of Drs. Langs, Mesbah and Singh in failing to secure a neurological consultation prior to making their decision to perform the operation, is not contrary to the weight of the credible evidence and must therefore be affirmed. In this regard we note that one of the plaintiffs experts, a neurologist named Dr. Horowitz, testified in answer to a hypothetical question predicated on the plaintiffs preoperative condition, that he would have initially prescribed a regimen of physiotherapy rather than surgery. That testimony is probative on the issue of whether a neurological consultation would have resulted in a recommendation for surgery. The weight to be afforded the conflicting testimony of experts is a matter peculiarly within the province of the jury (cf. Commercial Cas. Ins. Co. v Roman, 269 NY 451, 456-457; People v Lancaster, 65 A.D.2d 761; Matter of Commissioner of Welfare of City of N.Y. v Simon, 20 A.D.2d 865, 866). In addition, so much of the jurys answer to the third interrogatory submitted to it (Special Finding No. 3), as determined that the plaintiff has successfully established that her ulnar nerve had been negligently injured during the course of the operation by Drs. Singh and Mesbah, resulting in causalgia, is also supported by the credible evidence. However, the parallel factual finding with respect to Dr. Langs, who was not even present in the operating theater at the time of the operation, must be reversed. A new trial as to Dr. Langs on that issue is not required, however, in view of the fact that the verdict against him based on his failure to secure a neurological consultation is sustained. As regards certain of the trial courts evidentiary rulings, we note that under the facts of the instant case, plaintiffs unintentional failure to reveal to the appellants the empirical test data supporting Dr. Horowitz disclosure that his September, 1979 electromyographic examination of the plaintiff had revealed "only * * * minimal abnormalities", was not prejudicial to the appellants and did not require the total exclusion of Dr. Horowitz trial testimony (22 NYCRR 672.8; cf. Valenti v [93 A.D.2d 819 Page 820]