Charlton v. Montefiore Hospital

• Court: New York Supreme Court
• Writing for the Court: J. IRWIN SHAPIRO
• Citation: Charlton v. Montefiore Hospital, 45 Misc.2d 153, 256 N.Y.S.2d 219 (N.Y. Sup. Ct. 1965)
• Decision Date: 15 January 1965
• Parties: Lillian CHARLTON v. MONTEFIORE HOSPITAL, A. Ackerman, M.D., first name unknown, G. Liebergall, M.D., first name unknown, and Bronstein, M.D., first name unknown.

Page 219

256 N.Y.S.2d 219

45 Misc.2d 153

Lillian CHARLTON v. MONTEFIORE HOSPITAL, A. Ackerman, M.D., first name unknown G. Liebergall, M.D., first name unknown, and Bronstein, M.D., first name unknown.

Supreme Court, Trial Term, Queens County, Part I.

Jan. 15, 1965.

Seymour Stern, New York City, for plaintiff.

Bower, O'Connor & Taylor, New York City, for defendants; William F. O'Connor, New York City, of counsel.

J. IRWIN SHAPIRO, Justice.

This is an action, tried by the court without a jury, to recover damages for injuries sustained as a result of the alleged negligence of the defendant hospital in the removal of a pterygium over the nasal cornea of the plaintiff's left eye. (Pterygium is a triangular overgrowth of the bulbar conjunctiva from the nasal side.)

At the close of plaintiff's case the defendant moved to dismiss the complaint on the ground that plaintiff had failed to make out a prima facie case. Decision thereon was reserved. Defendant thereupon rested without offering any proof and renewed its motion to dismiss. Decision was likewise reserved on that motion.

The plaintiff is a 53-year-old woman who was operated on by physician employees of the defendant hospital on March 8, 1961 and again on July 5, 1961.

The first operation was not successful because the pterygium was not completely removed. Further surgical procedure was therefore required and this took place on July 5, 1961. While plaintiff was still in the hospital the bandage over the left eye was removed, revealing a drooped left eyelid which plaintiff did not have prior to the second operation.

Plaintiff, prior to the second operation, had no congenital anomalies of the left or right eyelid, nor did she sustain any traumatic injuries known to her that would cause a drooping eyelid (medically known as ptosis).

Plaintiff relied on her own testimony and the introduction of the hospital records, but called no medical expert to testify to the relationship, if any, between her operation and the drooping eyelid.

Crediting the plaintiff's testimony in its entirety, as I do, that at the time the second operation began her left eyelid was in perfect condition and that immediately after the operation she had a drooping eyelid, and drawing the most favorable inferences that possibly can be extracted from her testimony and the hospital records, which I also do, the question resolves itself into whether, in the absence of expert medical testimony, plaintiff has presented sufficient evidence to establish a prima facie case.

Since the doctors in this case were employees of the defendant hospital, upon the theory of respondeat superior, the hospital stands in the shoes of the operating physician. What, then, is the nature and extent of the duty owed by a physician to his patient? As far back as 1898, in the oft-quoted case of Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760, the court laid down the basis of liability in such cases. Said the court (Id. at 209-210, 49 N.E. at 762):

'The law relating to malpractice is simple and well settled, although not always easy of application. A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery. Upon consenting to treat a patient, it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment. The rule in relation to learning and skill does not require the surgeon to possess that extraordinary learning and skill which belong only to a few men of rare endowments, but such as is possessed by the average member of the medical profession in good standing. Still, he is bound to keep abreast of the times, and a departure from approved methods in general use, if it injures the patient, will render him liable, however good his intentions may have been. The rule of reasonable care and diligence does not require the exercise of the highest possible degree of care, and, to render a physician and surgeon liable, it is not enough that there has been a less degree of care than some other medical man might have shown, or less than even he himself might have bestowed, but there must be a want of ordinary and reasonable care, leading to a bad result. This includes not only the diagnosis and treatment, but also the giving of proper instructions to his patient in relation to conduct, exercise, and the use of an injured limb. The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination. His implied engagement with his patient does not guarantee a good result, but he promises by implication to use the skill and learning of the average physician, to exercise reasonable care, and to exert his best judgment in the effort to bring about a good result.'

In George v. City of New York, 22 A.D.2d 70, 71, 253 N.Y.S.2d 550, 552, the court said: 'As regards the human body, its capacities and tolerances, it is a rare case where common knowledge is sufficient to show that an accident would not have happened without negligence.' Is this such a rare case? Can the court, as a layman, without regard to any special knowledge which he may have obtained either as a lawyer or as a judge, say that the drooping of the eyelid in this case could not have occurred 'without negligence'? Realizing that 'No matter how lacking in skill or how negligent the medical man might be, it [is] almost impossible to get other medical men to testify adversely to him in litigation based on his alleged negligence' because of the 'conspiracy of silence' in this regard (Salgo v. Leland Stanford Jr. University Bd. of Trustees, 154 Cal.App.2d 560, 568, 317 P.2d 170, 175), ¹ the court should strain itself to compel a physician who knows, or should know, the reason for the questioned occurrence, to explain it. Such a requirement of 'explanation is not too great a burden to impose upon those who wield instruments of injury and whose due care is vital to life itself.' (Dean Prosser in 37 Cal.L.Rev. 183, as quoted in Klein v. Arnold, Sup., 203 N.Y.S.2d 797, 800.)

However, in order to invoke the rule for a requirement of explanation by a treating physician it must first be shown that the condition complained of (1) was caused by an agency over which the doctor had exclusive control, and (2) that it is one which common experience shows would not have occurred unless there was negligence in the operation or control of that agency (George v. City of New York, supra). In this case, while the doctors had exclusive control over the patient while she was under the anesthesia, it is not within the common experience of mankind to say that this drooping eyelid is one which would not have occurred without some negligence in the treatment of the plaintiff.

The hospital record reveals that during the course of surgery an injection of anesthesia was introduced into this very eyelid. It is obvious that the muscles and nerves of the eyelid control its upward and downward movement. How then can a layman say that the drooping of the eyelid could not have resulted even with the exercise of the greatest degree of skill upon the part of the treating physicians. Before there can be a recovery here, it is necessary for plaintiff to establish that there has been a deviation from the proper surgical and operative methods. In a case like this, the mere fact of an unexpected result does not give rise to a presumption of negligence, and to permit a trier of the fact to indulge in such an inference would in reality permit speculation as to the basic cause of the injury. It is only when the results of the treatment are 'of such a character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves' that expert medically-known evidence is not required to furnish the basis for a determination by a jury that there has been unskillful practice and medical treatment by a physician. (Benson v. Dean, 232 N.Y. 52, 56, 133 N.E. 125, 126.) It is only when common sense suggests that the condition discovered is incompatible with proper surgery or proper medical treatment that there is a burden upon the defendant to go forward with an explanation.

Injury to a patient undergoing medical treatment raises no inference, from the mere fact of injury, as to whether it was traumatic or non-traumatic unless the surrounding facts and circumstances clearly warrant the drawing of such an inference. It is in those rare cases 'where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill' (Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 396, 34 N.E.2d 367, 370) that expert medical testimony is not necessary for a plaintiff to make out a prima facie case. When '* * * the very nature of the acts complained of bespeaks improper treatment and malpractice' then the defendant is under the necessity of going forward with evidence to justify his...