Cox v. Stretton

Citation352 N.Y.S.2d 834,77 Misc.2d 155
PartiesMinnie G. COX et al., Plaintiffs, v. Ernest H. STRETTON, M.D., Defendant. . Lawrence County
Decision Date25 February 1974
CourtUnited States State Supreme Court (New York)


On this motion to dismiss the complaint on the ground that it fails to state a cause of action, the plaintiffs' allegations must be accepted as true (Tobin v. Grossman, 24 N.Y.2d 609, 612, 301 N.Y.S.2d 554, 555, 249 N.E.2d 419, 420).

It is alleged that the plaintiff, Richard G. Cox, and his wife, the plaintiff Minnie G. Cox, decided to limit the size of their family to their then existing two infant children, Eugene Cox and Sharon Cox. For the purpose of being rendered sterile, the plaintiff, Richard G. Cox, on June 6, 1970 consulted the defendant, a licensed physician, for his advice and treatment with respect to a vasectomy. The defendant doctor undertook to diagnose and treat the plaintiff, Richard G. Cox, and represented to him that the procedure would produce sterility. On June 6, 1970, the defendant performed surgery known as a vasectomy, which, together with subsequent treatment and tests performed by him, were falsely represented to have resulted in the desired sterility of the plaintiff, Richard G. Cox.

It is further alleged that the defendant rendered incorrect medical advice and was negligent and unskillful in his diagnosis, surgical procedure, care and treatment. The defendant's negligence is catalogued as failure to use proper surgical techniques; improper labeling of surgically removed parts; failing to test; failing to inform of the risks involved; and failing to possess and employ the required skill and competence; all of which constituted a departure and deviation from acceptable standards of medical practice then and there required.

It is then alleged that in reliance on the defendant's verbal assurance that the plaintiff, Richard G. Cox, had been rendered sterile he and his wife engaged in sexual relations which resulted in the conception of a male child, born June 26, 1972, although on November 16, 1971 the defendant examined the plaintiff, Minnie G. Cox, and falsely assured her that she was not pregnant.

The complaint sues three causes of action on behalf of the plaintiffs, Richard G. Cox and Minnie G. Cox; the 'First' in negligence, the 'Second' in contract and the 'Third' for lack of informed consent.

The 'Fourth' cause of action is brought on behalf of the infant children, Eugene Cox and Sharon Cox. It alleges that by reason of the defendant's negligent malpractice and breach of contract, the infant plaintiffs have been deprived, and in the future will be deprived, of a portion of the care, affection, training and financial support each would have received except for the birth of their unplanned brother on June 26, 1972.

In addition to moving for dismissal of the entire complaint on the ground that it fails to state a cause of action (CPLR 3211, subd. (a)(7)), the defendant moves, in the alternative, for dismissal of the 'Third' cause of action on the ground that it is barred by the Statute of Limitations (CPLR 3211, subd. (a) (5)).

The defendant contends that the 'Third' cause of action alleging lack of informed consent is founded not in negligence, but states a cause of action in assault which must be commenced within one year (CPLR 215, subd. (3)). To support this position the defendant cites Pearl v. Lesnick, 20 A.D.2d 761, 247 N.Y.S.2d 561, aff'd 19 N.Y.2d 590, 278 N.Y.S.2d 237, 224 N.E.2d 739; and Darrah v. Kite, 32 A.D.2d 208, 301 N.Y.S.2d 286.

The plaintiffs urge that the 'Third' cause of action is directed not at the wrongful assault but rather at the negligence of the defendant in failing to disclose the risks in sufficient detail to allow the plaintiff-parents to make an informed decision whether to proceed with the operation and subsequent normal marital relations.

The motion is made on the summons and complaint alone. No other supporting evidence is submitted. There is no affidavit or other proof before the court from which it can be established when the action was commenced, but the summons by which this action was commenced is dated April 24, 1973, and if that date accurately reflects the time when the pleading was prepared, the action could not have been commenced within one year after the 1970 surgery. Counsel for the plaintiffs and for the defendant on their oral arguments, and in written memoranda submitted to the court, concede that the summons was served on the defendant during the early part of May 1973, more than one year after the surgery was performed.

Admissions by counsel on the argument of motions such as this are binding upon the parties (Loblaw v. N.Y.S. Bd. of Pharmacy, 22 Misc.2d 131, 133, 202 N.Y.S.2d 711, 714, revd. on other grounds 12 A.D.2d 180 at page 186, 210 N.Y.S.2d 709 at page 716, which recognized the binding effect of oral concessions). It would serve no useful purpose to avoid determination of the motion simply because adequate documentary evidence is not before the court. It is obvious that the same issue would be presented on a later motion made for the same relief on the pleadings now before the court plus a single-sentence affidavit establishing the date when the action was commenced. Therefore, the motion attacking the timeliness of the action will be considered.

The plaintiffs rely heavily on Fogal v. Genesee Hospital, 41 A.D.2d 468, 344 N.Y.S.2d 552. That authority, however, addresses itself not to the Statute of Limitations governing causes based on lack of informed consent, but rather defines the scope of the duty to disclose the dangers inherent in the proposed surgery and the duty to obtain from a patient informed acquiescence to proceed (Fogal v. Genesee Hospital, supra, p. 474, 344 N.Y.S.2d p. 560). 'Under New York law a physician may be liable for failure to obtain the informed consent of his patient to a surgical procedure (Darrah v. Kite, 32 A.D.2d 208, 210--211, 301 N.Y.S.2d 286; Fiorentino v. Wenger, 26 A.D.2d 693, 272 N.Y.S.2d 557, revd. on other grounds 19 N.Y.2d 407, 413, 280 N.Y.S.2d 373, 227 N.E.2d 296; DiRosse v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623). The cause of action is not based on any theory of negligence but is an offshoot of the law of assault and battery. Any nonconsensual touching of a patient's body, absent an emergency, is a battery and the theory is that an uninformed consent to surgery obtained from a patient lacking knowledge of the dangers inherent in the procedure is no consent at all. There must be 'a reasonable disclosure * * * of the known dangers * * * incident to' the proposed treatment (DiRosse v. Wein, supra).' (Fogal v. Genesee Hospital,supra, 41 A.D.2d p. 473, 344 N.Y.S.2d p. 559.)

In the complaint here under consideration it is alleged in paragraph 'Sixteenth' of the 'Third' cause of action that 'the defendant failed * * * to divulge * * * the risks which would, singly or in combination, and when tested by general considerations of reasonable disclosure under all the circumstances, have or could have materially affected the plaintiff Robert G. Cox's decision to proceed with the alleged operation and subsequent treatment and with the joint decision thereafter of both plaintiffs to enter upon a course of normal sexual intercourse.' By that paragraph the plaintiff-parents attempt to allege negligent failure on the part of the defendant doctor to divulge the risks and consequences involved in the proposed surgery. If this be negligence, it is to be proved under the general allegations of negligence. It does not determine the time within which the cause based on the 'offshoot of the law of assault and battery' must be commenced.

In addition to that alleged negligence, however, there are realleged in paragraph 'Fifteenth' of the 'Third' cause of action, paragraphs 'Fourth' and 'Fifth' of the 'First' cause of action. These realleged paragraphs assert that the defendant 'operated' upon the plaintiff, Richard G. Cox, and 'performed surgical procedures.' These are the physical contacts to which the courts allude in defining the cause of action as 'an offshoot of the law of assault and battery' (Fogal v. Genesee Hospital, supra, p. 473, 344 N.Y.S.2d p. 559) and a 'trespass on the body aris(ing) from the unlawful touching itself * * *.' (Darrah v. Kite, 32 A.D.2d 208, 211, 301 N.Y.S.2d 286, 290, supra.) They occurred more than one year before the action was commenced.

The plaintiffs urge further that the cause of action could not arise and the Statute of Limitations could not begin to run until the plaintiffs became aware of the ineffectiveness of the defendant's surgical procedure. This, they point out, could not be known until there was evidence of a pregnancy induced by the plaintiffs' sexual activity following the defendant's surgery. That evidence was not available until beyond one year from the time of surgery and it is the plaintiffs' position that the situation here should be likened to the 'foreign object' cases which delay the running of the statute until the malpractice is, or should be, discovered (Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871; Dobbins v. Clifford, 39 A.D.2d, 1, 330 N.Y.S.2d 743). The tolling of the statute in the 'foreign object' cases applies, however, to the causes of action in contract and for negligent malpractice, not to the cause of action arising as an 'offshoot' of the law of assault and battery. The 'trespass on the body' occurs at the time of the surgical procedure, and failure to discover undesired results does not extend the statute for the 'trespass' or 'battery.'

The 'Third' cause of action was not commenced within one year. It is barred (CPLR 215, subd. (3)).

The 'Fourth' cause of action, on behalf...

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