In an action to recover damages for medical malpractice, the
Ordered that the judgment is reversed, on the law and the facts, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial in accordance herewith, with costs to abide the event.
The plaintiff in this action to recover damages for medical malpractice claimed that the defendant Nelson R. Giraldo departed from good and accepted medical practice in treating his spinal condition, which was ultimately diagnosed as Potts Disease, or tuberculosis of the spine. Among the three theories of liability submitted to the jury was the claim that Dr. Giraldo failed to render follow up medical care to the plaintiff after March 22, 1993. The jury found this to be the only departure by Dr. Giraldo from accepted standards of medical care and that it was a substantial factor in causing injury to the plaintiff.
While Dr. Giraldo moved to set aside the verdict as against the weight of the evidence, he never moved for a directed verdict at the close of the evidence. Consequently, his request on appeal for judgment in his favor as a matter of law is unpreserved for appellate review (see Miller v Miller, 68 NY2d 871, 873 [1986]; Sanford v Woodner Co., 304 AD2d 813, 814 [2003]; Hurley v Cavitolo, 239 AD2d 559 [1997]). There is merit, however, to his claim that the verdict was against the weight of the evidence.
A verdict is contrary to the weight of the evidence if “the jury could not have reached the verdict on any fair interpretation of the evidence” (Nicastro v Park, 113 AD2d 129, 134 [1985]; cf. Aprea v Franco, 292 AD2d 478, 479 [2002]). The evidence established that at a follow-up examination on March 22, 1993, Dr. Giraldo directed that repeat x-rays be taken of the plaintiff as soon as possible. The plaintiff, a patient who had earlier checked himself out of the defendant Southside Hospital against medical advice, never submitted himself to these x-rays. He testified that he did not remember being referred for x-rays. The only other evidence relevant to the verdict of liability consisted of the confused testimony of the plaintiffs expert, Dr. Jeffrey Vieira. In answer to a hypothetical question, which
Accordingly, the Supreme Court should have granted the motion to set aside the verdict as against the weight of the evidence. We now do so and remit the matter to the Supreme Court, Suffolk County, for a new trial limited to the theory on which the jury found Dr. Giraldo hable, the failure to render follow up medical care after March 22, 1993, and, if necessary, damages.
In view of this disposition, it is unnecessary to reach Dr. Giraldo’s remaining contentions. Ritter, J.P., Krausman, Crane and Spolzino, JJ., concur.