Davis v. Caldwell

• Decision Date: 19 November 1981
• Citation: 445 N.Y.S.2d 63,429 N.E.2d 741,54 N.Y.2d 176
• Parties: , 429 N.E.2d 741 Joan R. DAVIS et al., Respondents, v. Elethea H. CALDWELL et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 63

445 N.Y.S.2d 63

54 N.Y.2d 176, 429 N.E.2d 741

Joan R. DAVIS et al., Respondents, v. Elethea H. CALDWELL et al., Appellants.

Court of Appeals of New York.

Nov. 19, 1981.

John B. McCrory, Rochester, for appellants

Sanford Robert Shapiro, Rochester, for respondents.

OPINION OF THE COURT

JONES, Judge.

When multiple theories of liability have been submitted to a jury which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories. In this medical malpractice action, because plaintiffs failed to introduce evidence sufficient to sustain a verdict in their favor on two of the theories submitted, the order of the court below affirming plaintiffs' judgment must be reversed and a new trial ordered with respect to the theories of liability for which the proof was sufficient.

On June 17, 1976 plaintiff Joan Davis underwent a bilateral subcutaneous mastectomy, ¹ resulting in the removal of substantial portions of both breasts, accompanied by breast reconstruction with silicone implants. Although the patient's prior medical history had given rise to suspicion that a cancerous condition might be present, pathological and X-ray studies of segments of the tissue removed disclosed no malignancy. The present action by Mr. and Mrs. Davis was subsequently instituted to recover money damages, for what they term an unnecessary operation, from Dr. Elethea Caldwell, the physician by whom the surgery was performed, and from Strong Memorial Hospital, Dr. Caldwell's employer and in whose facilities the operation was performed. At the conclusion of the trial at which medical witnesses were called by both sides the court charged the jury that plaintiffs were proceeding on five theories of liability ² which he described as follows: (1) erroneous diagnosis of Mrs. Davis' condition by Dr. Caldwell; (2) failure to have performed a biopsy ³ prior to the surgery; (3) performance of an unnecessary operation on Mrs. Davis; (4) failure to have followed accepted standards of medical care in the community; (5) failure, prior to the surgery, to have obtained an informed consent from Mrs. Davis. The jury was instructed that it was required to decide all five of plaintiffs' claims but should return only one, general verdict; that if it found in favor of plaintiffs on any one of the claims the jury would award a dollar amount but that it would not make known on which of the claims it had found for the plaintiffs. Following extended deliberation the jury returned a substantial verdict against both defendants, which was affirmed by a divided court at the Appellate Division. The case is now before us by reason of the dissent on a question of law in that court, the dissenting Justice being of the opinion that the judgment for plaintiffs could not stand because there was insufficient evidence to warrant submission to the jury of the first and third theories of liability articulated by the trial court.

We agree with the view thus expressed and accordingly reverse the order of the Appellate Division. Because it is impossible from the general verdict returned by the jury in accordance with the trial court's instructions to determine that the verdict was not predicated on a finding in plaintiffs' favor on one of the claims which, for lack of supporting proof, should not have been submitted to it, the verdict must be set aside and a new trial ordered. At the new trial the jury may not consider the two theories of liability for which the evidence was insufficient on the first trial but may consider those theories as to which sufficient evidence was introduced at the previous trial to have warranted a verdict favorable to plaintiffs (Gurney, Becker & Bourne v. Benderson Dev. Co., 47 N.Y.2d 995, 420 N.Y.S.2d 212, 394 N.E.2d 282). ⁴

With respect to the first theory of liability placed before the jury--erroneous diagnosis of Mrs. Davis' condition by defendant Caldwell--the record is devoid of proof (and plaintiffs point to none) that the operating surgeon ever made a diagnosis or was ever called on to do so. Although plaintiffs' contention is that before Mrs. Davis agreed to undergo substantial breast surgery they had been informed, in error, that there was cancerous tissue present, Mrs. Davis herself testified that at no time did Dr. Caldwell make the statement that she had cancer. The evidence was uncontradicted that the preoperative diagnosis, which appeared on the hospital records as "Bilateral mastopathy with calcification suspicious of carcinoma on mammogram ⁵ had been made by Dr. Wende Logan, a physician whose practice was limited to diagnosis of breast cancer (not a party to this action), and accepted by the patient's general surgeon, Dr. Kenneth Chandler (also not a party), by whom cancerous tissue had been removed from Mrs. Davis' right breast in a biopsy performed in April, 1974, some two years earlier. It was as a result of referral by Dr. Chandler that the Davises met with defendant Caldwell to arrange for the bilateral subcutaneous mastectomy. The record lacks any evidence that Dr. Caldwell participated in the diagnosis which preceded, and had been completed by the time of, her engagement. That being so, it was error for the jury to have been permitted to consider as a basis for an award to plaintiffs an error in diagnosis of Mrs. Davis' condition by Dr. Caldwell.

In like vein, and again without demonstration by plaintiffs to the contrary, no proof was offered to support a claim that the operation performed on Mrs. Davis was unnecessary, which the court submitted to the jury as the third theory of liability. There was no controversy that cancerous tissue had been found to be present in one of the patient's breasts about two years earlier at which time she had refused to submit to a mastectomy despite a recommendation of combined treatment by radiation and mastectomy...