Darrah v. Kite

• Decision Date: 18 June 1969
• Citation: 32 A.D.2d 208,301 N.Y.S.2d 286
• Parties: Bruce DARRAH, an Infant, by Harold Darrah, His Father and Guardian ad Litem, Appellant, v. William C. KITE, Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 286

301 N.Y.S.2d 286

32 A.D.2d 208

Bruce DARRAH, an Infant, by Harold Darrah, His Father and Guardian ad Litem, Appellant, v. William C. KITE, Jr., Respondent.

Supreme Court, Appellate Division, Third Department.

June 18, 1969.

John P. Judge, Plattsburgh (Charles S. Desmond, Buffalo, of counsel), for appellant.

Martin, Clearwater & Bell, Syracuse (Donald J. Fager and Walter G. Alton, Jr., Syracuse, of counsel), for respondent.

Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and COOKE, JJ.

OPINION FOR MODIFICATION

HERLIHY, Justice.

This is an appeal by the plaintiff from a judgment of the Supreme Court, entered February 29, 1968 in Clinton County, upon jury verdicts of no cause for action and from an order of that court which denied plaintiff's motion to set aside the verdicts.

The appellant contends that the jury verdicts were against the weight of the evidence or, in the alternative, that a new trial should be had in the interests of justice. The judgment and order should be affirmed without costs as to the malpractice causes of action and reversed and remanded for a new trial on the informed consent cause of action.

The infant plaintiff suffered from convulsive seizures in the nature of those generally associated with epilepsy from the age of 5 1/2 months. At nine years of age (September of 1957) the seizures became more frequent and his pediatrician recommended referral for specialized study. He was referred to the defendant, a neurosurgeon and specialist in the diagnosis and treatment of physical disorders related to or caused by some abnormality of the brain and/or its environment. The defendant examined the plaintiff and recommended hospitalization, the deplete workup' or 'routine brain tests'. After hospitalization, the defendant performed various tests, the last of which was a ventriculogram. All of the tests performed were described by the expert witnesses as being standard diagnostic procedures although the ventriculogram involved the opening of the skull and penetration of the brain itself. It was also established that the ventriculogram was employed only when the other and preceding procedures resulted in inadequate illumination of the brain or its particular area under study. The results of the tests were negative as to any tumor or pressure causing the seizures of the plaintiff and he was discharged from the hospital on October 3, 1957. Shortly after this discharge the infant suffered a series of convulsions and was again hospitalized under the care of the defendant. On October 17, 1957 the defendant performed a craniotomy at the site of the skull previously opened for the ventriculogram procedure. The defendant removed a blood clot and necrotic brain, the blood clot having been caused by the ventriculogram procedure. The plaintiff had a substantial recovery until 1962 when his condition began to deteriorate. As of the time of the trial the infant was mentally and physically defective and was in the care of a State institution for the mentally retarded.

The plaintiff offered proof that the defendant had been negligent (malpractice) in several respects: (a) electing to perform the ventriculogram; (b) unnecessarily choosing to test the right side of the brain; (c) failing to promptly diagnose and treat the blood clot upon the second hospitalization (October 9--October 17, 1957); (d) improperly performing the craniotomy. As the Trial Justice pointed out in his opinion denying the motion to set aside the verdicts, the defendant offered substantial expert testimony that in 1957 a ventriculogram was a standard diagnostic test and that he had not been negligent in any of the foregoing matters. It appears that there were issues of fact for the jury as to negligence and the resolution thereof by the jury is not against the weight of the evidence. There was also evidence on behalf of the defendant that the present condition of the plaintiff was not substantially related to the blood clot and subsequent craniotomy. The trial court submitted a general question to the jury as to negligence (malpractice) and the plaintiff took no exceptions and made no requests. It should be noted, however, that where there are several possible acts of negligence and possibilities of limited as well as general damage flowing therefrom, it would no doubt better enable the jury to consider the case if special questions were submitted as to the negligent act and the possibilities of recoverable damage therefrom.

The plaintiff alleged in his complaint as a separate cause of action the failure of the defendant to obtain an informed consent before performing the procedure for the ventriculogram. Upon the present record it appears that in considering the theory upon which plaintiff presented his case and the charge of the court as without exceptions and objections, the verdict in favor of the defendant was not against the weight of the evidence.

It is opinion of this court, however, that the Trial Judge improperly charged the jury with respect to this cause of action when he instructed them that 'where the physician fails to make a disclosure the burden is still upon the plaintiff to prove that his failure to disclose was the proximate cause of any injury that he claims to be entitled to recover for', and 'that the defendant is liable for the injuries or disabilities that the infant plaintiff received, that were proximately caused by the failure of the defendant to disclose'.

It has long been settled in this State that a 'surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages' (Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129--130, 105 N.E. 92, 93, 52 L.R.A.,N.S., 505), at least in the absence of an emergency. (See McCandless v. State of New York, 3 A.D.2d 600, 606, 162 N.Y.S.2d 570, 575, affd. 4 N.Y.2d 797, 173 N.Y.S.2d 30, 149 N.E.2d 530.) Although the decision in Schloendorff...