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- 3083 Mauro

- Tartaglia v. Maxian 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10 th da y of December , two thousand twenty

. P resent : D EBRA A NN L IVINGSTON , Chief Judge , A MALYA L. K EARSE , R ICHARD J. S ULLIVAN , Circuit Judges

.

_____________________________________ M ICHELLE M AURO

- T ARTAGLIA , Plaintiff

- Appellant ,

v. 19

- 3083
T INA M AXIAN , M.D. , S CHENECTADY R EGIONAL O RTHOPEDIC A SSOCIATES , PC, Defendants - Appell ees .

_____________________________________ For Plaintiff

- Appellant : B ONNIE R OSE W ATSON , Girvin & Ferlazzo, P.C., Albany, N.Y.
F or Defendants

- Appellee s : S HAWN F. B ROUSSEAU , Napierski, VanDenburgh, Napierski & O’Connor LLP, Albany, N.Y.2 Appeal from a judgment of the United States District Court for the Northern District of New York ( Hummel , M.J. )

. UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff

- A ppellant Michele Mauro

- Tartaglia (“Mauro

- Tar ta galia”) contends that the district court abused its discretion in denying her motion for a new trial pursuant to Federal Rul e of Civil Procedure 59 following the jury’s verdict against her. She argues that she did not provide informed consent for a series of orthopedic procedures perfo rmed by Defendant

- A ppellee Dr. Tina Maxian (“Maxian”) because Maxian failed to apprise her of the reasonably foreseeable risks of
surgery, the risks of for going surgery, and the alternatives to surgery. Because we conclude that the jury’s verdict was not against the clear weight of the evidence presented at trial, the district court did no t abuse its discretion in denying Mauro

- Tartaglia’s new trial motion

. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. A district court may grant a new trial if , as relevant here, the jury returned a verdict that is against the weight of the evidence. Piesco v. Koch , 12 F.3d 332, 345 (2d Cir. 1993). However, “a trial court should be most reluctant to set aside that which it has previously decided,” LiButti v. United States , 178 F. 3d 114, 118 (2d Cir. 1999), and therefore should stay its hand unless it “is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice,” Lightfoot v. Union Carbide Corp. , 110 F.3d 898, 911 (2d Cir. 199 7) (quoting Hygh v. Jacobs , 961 F.2d 359, 365 (2d Cir. 1992))

. We review a district court’s denial of a motion for a new trial for abuse of discretion. See Ali v. Kipp , 891 F.3d 59, 64 (2d Cir. 2018).3 Under New York law, a patient must give informed cons ent to a medical procedure. N.Y. Pub. Health Law § 2805

- d; see, e .g. , Sarwan v. Portnoy , 51 AD3d 655, 656 (2d Dept 2008). In this case, the jury was instructed (without objection) that “ [ i ] t is the doctor’s duty to explain, in words that are understandab le to the patient, all of the facts that would be explained by a reasonable medical practitioner so that when the patient does, in fact, consent, that consent is given with an awareness of (1) the patient’s existing physical condition; (2) the purposes and advantages of the operation, procedure, or medication; (3) the reasonably foreseeable risks to the patient’s health or life which the operation, procedure, or medication may impose; (4) the risks involved to the patient if there is no operation, procedure or use of medication; and (5) the available alternatives and the risks and advantages of those alternatives.” Joint App’x at 304 . The parties dispute only whether Maxian satisfied the third, fourth, and fifth elements of this legal standard. We conclud e that as to each, the evidence supports the jury’s verdict in Maxian’s favor. First, the jury had an ample basis on which to conclude that Maxian properly informed
Mauro

- Tartaglia of the reasonably foreseeable r isks of the procedures. Maxian testified that although she could not recall precisely what she said to Mauro

- Tartaglia prior to the surgery, she ordinarily informed patients of three risks: wounds, hardware failure, and the foot looking ab normal. See Joint App’x at 152

– 55. A s part of her routine explanation, Maxian typical ly describe d the medical procedure, informing patients that she would “ perforate the bone with a drill, and then realign it and place ” screws or other hardware into the bone. Id. at 150. From
t his testimony , the jury was entitled to conclude that the reasonably foreseeable risk s were disclosed, and that the associated risks of pain, swelling, and possible future surge ry from hardware failure or other complications w ere sufficiently evident that they did not require independent disclosure. See N.Y. Pub. Heath Law § 2 8 05

- d(4)(a) (relieving physicians of a duty to warn4 patients of risks “too commonly known to warrant disclosure”). The jury was likewise permitted to infer that o ther potential risks, such as problems with bone union, were not reasonably foreseeable in light of testimony that those risk s were uncommon. Next , the record supports the jury’s conclusion that Maxian gave Mauro

- Tartaglia enough information to apprise he r of the reas onably foreseeable risks of for going the procedure. Even though Maxian testified that she would not ordinarily discuss the risks of f or going surgery, Joint App’x at 156, Mauro

- Tartaglia t estified that she knew that for going surgery was an opt ion, that there were no risks associated with not having surgery, and that Maxian in fact informed her of this option, Joint App’x at 203

. Accordingly, Mauro

- Tartaglia was not entitled to relief based on any error in the jury’s evaluation of the evidence as to Maxian’s supposed failure to advise Mauro

Tartaglia about the risks of doing nothing. Finally , the jury’s conclusion that Maxian sufficiently informed Mauro

- Tartaglia of the alternatives to surgery is also not against the clear weight of the evidence

. To be sure, all three physicians who testified iden ti fied orthotic footwear as a non surgical intervention Mauro

- Tartaglia might have tried. However, the jury was entitled to credit Dr. Mann’s general assertion that the only “alternative [ to surgery ] is not to have anything done,” Joint App’x at 274, Dr. Boc’s concession that hammertoes cannot be corrected “short of surgical procedures,” Joint App’x at 230, and Maxian’s statement that the nonsurgical options available to Mauro

- Tartaglia were “accommodati on[s]” rather than “treatment[s],” Joint App’x at 160. The record thus supports a finding that the only alternat ive to the procedure was to for go it altogether. As discussed above,
Mauro

- Tartaglia testified that she knew not having surgery was an option, and that there was no marginal risk associated with it.5 For these reasons, the district court did not abuse its discretion in concluding that the jury’s verdict was not against the clear weight of the evidence. We have considered Mauro

- Tartaglia’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk