concurs in part and dissents in part and votes to modify the judgment appealed by deleting the provision thereof awarding the plaintiff nonpecuniary damages, and to remit the matter to the Supreme Court, Kings County, for a new trial on the issue of nonpecuniary damages only, with the following memorandum: I cannot agree with the majority’s conclusion that the verdict was against the weight of the evidence. Although the majority has found that the unsuccessful litigant’s evidentiary position was particularly strong, as opposed to that of the successful party (see, Nicastro v Park, 113 AD2d 129, 136), I am of the view that its fact-intensive analysis is an infringement upon the jurors’ function (see, Gonzalez v Moscarella, 142 AD2d 550).
The jury returned a verdict absolving Dr. Rothman of liability and imposing liability against the appellants Drs. O’Leary and Block. The sums awarded the plaintiff were as follows: $250,000 for past pain and suffering and $250,000 for future pain and suffering; $200,000 for past loss of enjoyment of life and $200,000 for future loss of enjoyment of life; and $150,000 for loss of earnings to date and $150,000 for future loss of earnings. The trial court reduced the award for past loss of earnings to $53,805 and the award for future loss of earnings to $101,150, and left the remainder of the award intact.
In accordance with the oft-cited legal principle, a verdict should not be set aside as against the weight of the evidence unless the court finds that the jury could not have reached that verdict upon any fair interpretation of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 498; Jakalow v Consoli, 166 AD2d 414). While a verdict for the appellants might reasonably have been reached upon the evidence adduced, I do not believe that the determination of the jury, which had the opportunity to observe the witnesses’ demeanors and to assess their credibility, was unreasonable.
Not only did the appellants fail to demonstrate that a myelogram was required in this case, but they also departed from accepted medical standards in failing to have addressed the possibility of multiple sclerosis, particularly after the *851neurological consultation with Dr. Block, before introducing pantopaque dye into the plaintiffs spinal canal.
Moreover, the appellants’ assertion of urgency is belied by Dr. O’Leary’s own testimony. Although incomplete, the first myelogram indicated that no obstructions or lesions were visualized. Dr. O’Leary testified that, inasmuch as no blockage was detected, "emergency surgery went to the back burner” following that procedure. The conclusion seems inescapable that surgical intervention was no longer an urgent consideration and the welfare of the patient did not mandate the second myelogram. The appellants’ argument that the urgency of the situation did not allow them the time to utilize less invasive tests, such as CAT scans, is also belied by the hospital charts. The progress notes for July 6, 1982, two days before the second myelogram, indicate that a CAT scan and bone scan were ordered. They were, however, apparently never completed. Accordingly, in light of the diminished urgency of the situation, there was, in fact, time for the appellants to utilize other diagnostic tests of a less invasive nature.
Although the verdict was not against the weight of the evidence, the jury should not have been instructed to consider and award damages for loss of enjoyment of life separately from damages for pain and suffering (see, McDougald v Garber, 73 NY2d 246; Scariati v St. John’s Queens Hosp., 172 AD2d 817). While the Court of Appeals acknowledged, in McDougald, that certain distinctions between the two types of awards could sometimes be articulated, it reasoned that permitting separate awards could amplify the "distortion” inherent in the assessment of damages for human suffering. Stated succinctly, "loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering” (Nussbaum v Gibstein, 73 NY2d 912, 914).
Accordingly, I would remit the matter to the Supreme Court, Kings County, for a new trial on the issue of nonpecuniary damages only. The appellants’ remaining contentions are without merit.