Cummings v. Fondak

• Court: New York Supreme Court — Appellate Term
• Writing for the Court: PER CURIAM
• Citation: Cummings v. Fondak, 474 N.Y.S.2d 356, 122 Misc.2d 913 (N.Y. App. Term 1983)
• Decision Date: 06 December 1983
• Parties: Mark CUMMINGS, Plaintiff-Respondent, v. Alexander FONDAK and New York University Medical Center, Defendants-Appellants.

Page 356

474 N.Y.S.2d 356

122 Misc.2d 913

Mark CUMMINGS, Plaintiff-Respondent, v. Alexander FONDAK and New York University Medical Center Defendants-Appellants.

Supreme Court, Appellate Term First Department.

Dec. 6, 1983.

Bower & Gardner, New York City (Michael Yolli, of counsel), for appellants.

Kravitz & Becker (Michael J. Becker and Harry B. Frank, New York City, of counsel), for respondent.

Before DUDLEY, P.J., and HUGHES and PARNESS, JJ.

PER CURIAM.

Judgment entered October 13, 1982 (Ribaudo, J., with jury) is reversed with $30 costs and a new trial ordered.

Plaintiff has pleaded essentially two causes of action against the defendants, one asserting general medical malpractice, including malpractice in treatment, the other, malpractice based upon defendants' failure to secure plaintiff's informed consent to therapy. The jury found in favor of the defendants on the former cause of action and in favor of the plaintiff--in the sum of $200,000--on the latter cause of action.

On October 16, 1974, plaintiff sought treatment at the skin and cancer clinic of defendant New York University Medical Center, for a condition previously diagnosed elsewhere as progenital herpes. Defendant Dr. Alexander Fondak, a resident at N.Y.U. Medical Center, treated the plaintiff on October 16, 1974. He informed the plaintiff of various "modes of therapy" for herpes, gave the plaintiff topical salve, and advised plaintiff to return to the clinic in a week, or sooner if there was a flare-up of blistering associated with the condition. Plaintiff returned to the clinic two days later, on October 18, 1974. At that time Fondak treated the plaintiff's herpes condition with an application of dye (proflavin), subjected to a ten minute exposure of florescent light. On a subsequent visit by plaintiff to the clinic, Dr. Fondak gave the plaintiff a nonrenewable prescription for one ounce of proflavin dye, which he was to apply "once daily" and subject to florescent light. There was testimony that plaintiff was told to apply the dye only when there was a flare-up of the blistering condition. Although plaintiff was told to phone in three days and to return to the clinic in ten days, he did neither. Plaintiff testified that on 75 occasions, from November 1974 through January 1975, he utilized the "dye-light" treatment for his herpes condition. In February 1975, the plaintiff read an article in Time Magazine (published Feb. 3, 1975) which indicated that while the dye-light treatment had, as early as 1971, been found effective in the treatment of herpes, a recent "medical letter" had noted that "in tests on hamster cells, the dyes apparently caused changes in the viruses that enabled them to transform normal cells into malignant ones."

In April 1975 plaintiff commenced this action to recover damages for "psychic trauma, mental anguish and torture caused by 1) defendants' malpractice in providing the dye-light treatment, and 2) malpractice in failing to inform the plaintiff of the "danger and the risk of cancer." It is not claimed that the plaintiff has cancer; rather, plaintiff contends that as a result of the dye-light treatment he has developed a phobia that he will contract cancer, and it is for that alleged phobia that plaintiff now seeks to recover damages (Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249; Trapp v. Metz, 28 N.Y.2d 913, 323 N.Y.S.2d 166, 271 N.E.2d 697).

Plaintiff's witnesses included the plaintiff himself; Dr. Rapp, a virologist; Dr. Savitsky, a psychiatrist; Dr. Reisch, a dermatologist; and Mr. Daniels, a friend and "counselor" to the plaintiff. The plaintiff also introduced into evidence, over repeated objections from the defendants, five articles ^* and an unredacted hospital record. The defendants' case consisted of testimony by Dr. Fine, a resident of the Medical Center (who had one telephone conversation with the plaintiff, on February 6, 1975 after the latter had read the February 3, 1975 Time Magazine article); Dr. Fondak, the individual defendant; Dr. Shupack, Chief of the Skin and Cancer Unit at the Medical Center; and Dr. Spigland Chief of the Division of Clinical Virology at Montefiore Hospital.

It was research by Dr. Rapp that had apparently given rise to the February 3, 1975 Time Magazine article, that had triggered plaintiff's concern regarding the dye-light therapy. Dr. Rapp acknowledged that dye-light therapy was widely used in October 1974 for the treatment of herpes virus. He noted that experiments which he performed prior to the publication of a 1973 article on the subject showed that while dye and light treatment "inhibited" the herpes virus, i.e., their replication cycle was rendered "inactive," the inhibited virus nonetheless retains sufficient genetic information for "cell transformation." Both Dr. Rapp and Dr. Reisch indicated that the dye and light treatment for herpes received by the plaintiff exposed plaintiff to an increased risk of cancer and that defendants should have advised plaintiff of that increased risk at the time of treatment. Dr. Spigland and Dr. Shupack, testifying for the defendants, stated that dye and light treatment for herpes was in common use in 1974 and posed no increased risk of cancer. Indeed, Dr. Spigland noted that the therapy was "consistent with good and accepted medical practice," could be used without the need of informing the plaintiff of any risks, because "there weren't any risks" and its use was "almost universal" in the United States at that time; Dr. Shupack observed that the dye and light treatment for herpes received by the plaintiff was a "wholly benign form of therapy." It was clear from defendant Fondak's testimony that he could not have informed the plaintiff of any risks associated with dye-light treatment because, quite simply, he didn't know of any risks.

Plaintiff's case sought to convince the jury 1) that the dye-light therapy administered to the plaintiff by the defendant posed an increased risk of cancer, 2) that the risk was known to the medical profession in October 1974, 3) that Dr. Fondak's admitted ignorance of that risk constituted general medical malpractice and 4) that in view of the known risk posed by dye-light therapy, the defendants were obligated to secure plaintiff's informed consent before initiating that treatment. Defendants, through their expert witnesses, sought to demonstrate that no increased risk of cancer was posed by dye-light therapy and, as an obvious corollary of that proposition, that defendants had no obligation to inform plaintiff, prior to administering dye-light therapy, of such a risk.

In the context of this vigorously contested "battle of experts" the five articles offered into evidence by the plaintiff and accepted into evidence by the court over defendants' objection, assume significant importance. The five articles, some being extremely technical in nature, clearly represent hearsay evidence. No proper foundation for admitting these articles into evidence was laid by the plaintiff. Although plaintiff, in his brief on appeal, now states that the articles "... were not offered to prove the truth of the statements contained therein ..." the record gives quite the opposite impression and the jury was not instructed that they were to in any sense limit the scope of their consideration of those articles. In this context the jury was permitted to view the articles as proof of the facts contained therein, a patent error, highly prejudicial to the defendants (Richardson on Evidence, 10th ed., §§ 200, 373; and see Rosario v. N.Y.C. Health, 87 A.D.2d 211, 450 N.Y.S.2d 805; Ciaccio v. Housman, 97 Misc.2d 367, 411 N.Y.S.2d 524, DeFalco v. Long Is. Coll. Hosp., 90 Misc.2d 164, 393 N.Y.S.2d 859).

It was also error to admit into evidence an entry made in the hospital record by Dr. Fine after his February 6, 1975 telephone conversation with the plaintiff. In that entry Dr. Fine stated, inter alia, "I explained to him [plaintiff] that there was a great deal of difference of opinion in the cancer causing ability of the drug [proflavin] he was using." That statement, representing a gratuitous opinion concerning a material factual issue in this case, should not have been permitted into evidence, for it was not part of any diagnosis of plaintiff's condition, nor was it...