Mortensen v. Memorial Hosp.

• Decision Date: 27 December 1984
• Citation: 483 N.Y.S.2d 264,105 A.D.2d 151
• Parties: Michael V. MORTENSEN, Plaintiff-Appellant, v. MEMORIAL HOSPITAL, Defendant, Dr. Arthur Hugh Goldstein, Dr. Robert W. Rakov, Defendants-Respondents, and Arden Hill Hospital, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 264

483 N.Y.S.2d 264

105 A.D.2d 151

Michael V. MORTENSEN, Plaintiff-Appellant, v. MEMORIAL HOSPITAL, Defendant Dr. Arthur Hugh Goldstein, Dr. Robert W. Rakov, Defendants-Respondents and Arden Hill Hospital, Defendant.

Supreme Court, Appellate Division First Department.

Dec. 27, 1984.

Steven DiJoseph, New York City, of counsel (Edward P. Dunphy and Sandra Krevitsky, Garden City, on brief; Morris J. Eisen, P.C., New York City), for plaintiff-appellant.

Kenneth Mauro, New York City, of counsel (Schiavetti, Begos & Nicholson, New York City) for defendant-respondent Rakov.

Before MURPHY, P.J., and KUPFERMAN, SULLIVAN and KASSAL, JJ.

SULLIVAN, Justice.

On March 31, 1970, plaintiff, Michael Mortensen, then ten years old, underwent an operative procedure at Arden Hill Hospital for the removal of a Baker's cyst from the back of his left knee. Upon making his incision, however, and after retracting certain tendons and nerves the surgeon, defendant Dr. Rakov, discovered a hard, gritty "rather indistinct" mass which appeared to have penetrated the entire popliteal space. Dr. Rakov considered his finding unusual since he had never seen such a tumor in that part of the anatomy. He resected a portion of the mass, left the rest intact and closed the incision. A pathologist diagnosed the tumor as juvenile fibromatosis, a locally active, non-malignant type, non-metastasizing, but one which tends to invade nearby structures.

Discharged from the hospital on April 4th, plaintiff thereafter visited Dr. Rakov at his office on April 9th and again on April 16th. On both occasions Dr. Rakov conducted a brief physical examination and removed stitches. When plaintiff still complained of soreness and discomfort at a subsequent visit on May 15th, and his own examination revealed an area of decreased sensation and increased muscle atrophy in the left leg, Dr. Rakov decided to refer plaintiff to Dr. Knapper, a surgeon specializing in gastric and mixed tumors on the staff of Memorial Hospital. Dr. Rakov made the referral primarily because, as he explained, he "did not want to be the one to tell the patient that he needed a leg amputated." Dr. Rakov also was hopeful that Dr. Knapper "might have some idea" as to how amputation could be avoided.

Dr. Knapper first saw plaintiff on May 27th and found that "the mass rapidly recurred and enlarged to four or five times the size it had attained prior to initial excision." Due to the nature of the tumor, Dr. Knapper decided that he would attempt a wide excision, but, if the mass recurred, amputation would be necessary. During exploratory surgery, which took place on June 9th, Dr. Knapper found that the tumor was surgically unresectible, since the major artery and vein circulating blood to the leg below the popliteal area were encompassed by the mass, which was attached to the periosteum, with the lateral and medial popliteal nerves adhering to it. In light of plaintiff's age and size Dr. Knapper also ruled out the possibility of any bypass or grafting procedure.

On June 12, 1970, Dr. Knapper amputated plaintiff's left leg at mid-thigh. After his discharge from the hospital on June 26th plaintiff underwent a lengthy rehabilitation program at the Rusk Institute. In 1979 he commenced this action alleging medical malpractice against Dr. Rakov and others for his pain and suffering and his severe and permanent disability. The action was either discontinued against the other defendants or dismissed at the close of plaintiff's case. Only the action against Dr. Rakov is at issue.

At trial plaintiff's expert testified that Dr. Rakov, after having excised only a portion of the mass, departed from accepted medical practice by failing to reoperate once the tentative diagnosis of juvenile fibromatosis had been made. At that time, according to plaintiff's expert, the vital structures were still unaffected, so that had a wide excision of the tumor mass as well as the tissue around it been performed plaintiff would have had an 80% chance of achieving a complete recovery. Instead, according to plaintiff's expert, Dr. Rakov failed to provide any adequate follow-up care; nor did he afford plaintiff the opportunity of receiving medical care from a more qualified specialist. This delay permitted the tumor to grow to inoperable proportions and deprived plaintiff of a chance for a cure.

Dr. Rakov's expert testified that even by March 31, 1970 it was no longer possible to excise the tumor fully since it was growing from the inside out, and was located in an area where major vessels, arteries and nerves lie. Accordingly, once the nature of the tumor was diagnosed, Dr. Rakov exercised proper medical judgment in performing a partial excision and in foregoing any plan for further treatment.

Admittedly, however, Dr. Rakov had not attempted to follow any of the arteries, veins, or other internal structures to determine the extent of their involvement with the mass. It should also be noted that his operative report did not make any mention of the popliteal artery or vein or that the tumor was adhering to the periosteum.

Dr. Knapper, who was a witness for Dr. Rakov, testified that, while the March 31, 1970 surgery was acceptable and in accordance with proper medical practice, he could not express an opinion as to whether Dr. Rakov's course of conduct following the operation was in accordance with accepted standards of practice. He nevertheless felt that "anyone who fully understands the nature and progressive abilities of fibromatosis would probably give him further follow-up or made arrangements with him." A pathologist at Memorial Hospital who reviewed slides from the March 31st operation testified that the tumor was not a juvenile fibromatosis, but, in fact, a desmoid tumor, "arising from the deep structures of the human body and progressing ... slowly a duration of years." It should be noted, however, that although a desmoid tumor might be slightly faster growing and more locally malignant than a fibromatosis the two diagnoses are essentially the same.

During the course of a pre-charge conference plaintiff's counsel asked the court to "charge in your own language the law with respect to the Kallenberg case" ¹ on the issue of proximate cause. The court refused, stating "the Kallenberg case is not the law; I am charging a different case, Kimball v. Scors." In its charge on proximate cause the court stated:

In considering the question of proximate cause in this case, the law does not require that the plaintiff show to a certainty that his leg would have been saved had the defendant excised the tumor in early April of 1970. If you conclude that there was a substantial possibility that amputation could have been avoided had that surgery been performed at that time, that is in early April, and that the defendant's negligence in failing to perform that surgery deprived the plaintiff of that substantial possibility, then the defendant is liable to the plaintiff.

If, however, you conclude that that substantial possibility did not exist, then plaintiff has not established that he suffered any injury as a result of the defendant's negligence and he is therefore not entitled to recover.

In its charge in-chief, the court submitted two special questions to the jury:

(1) "Was Dr. Rakov negligent in not attempting to remove the mass in plaintiff's left leg in early April, 1970?"

(2) "Was there a substantial possibility that amputation could have been avoided had surgery been performed in early April, 1970?"

After commencing deliberations, the jury requested that the wording of the first question be changed. The court agreed and amended the question to read:

Was Dr. Rakov negligent in not taking any action with respect to the mass in plaintiff's left leg in early April, 1970?

Thereafter, the jury resumed deliberations and sent another note which asked, "can we award damages on question 1 if question 2 is answered no?" At this point, plaintiff's counsel once again urged that the Kallenberg rule be charged (Kallenberg v. Beth Israel Hosp., supra), so that, he explained, plaintiff could recover if any possibility existed that amputation could have been avoided. The court refused.

At this juncture the jury sent another note requesting guidance as to "a new category to base damages on." Over the objection of plaintiff's counsel, who then requested that the special questions be withdrawn and a general verdict taken, the court advised the jury that in order to award damages it would have to answer both questions in the affirmative. The court further charged the jury that it was not in a position to give a specific percentage, but that substantial possibility meant a "significant" or "realistic" possibility. Since, however, the court was unclear as to the meaning of the third note, it asked the jury to clarify its request, which the jury did by submitting the following note:

What we mean is that we believe there was not substantial possibility, but there was negligence on the doctor's part. We feel the plaintiff did not have his right to a second opinion and the doctor did not know enough to make a judgment to wait. So, being that there might have been the slightest possibility of saving the leg because of Dr. Rakov's action or lack of it, plaintiff did not get that opportunity to find out. Therefore, we wish to award damages based on that negligence and not the loss due to the amputation. Question: Can we? If so, we need guidance.

The court thereupon advised the jury that it was not legally permissible to award damages on such a basis, and that if the answer to the second question was in the negative, plaintiff would not be entitled to recover. Plaintiff's counsel excepted, urging once again that, under Kallenberg, even the slightest possibility of saving the limb would be sufficient to support a verdict in plaintiff's favor. The jury thereafter returned with a verdict of no-liability, finding, unanimously, that...