Dembicer v. Rosenthal
| Citation | 279 N.Y.S.2d 943,53 Misc.2d 777 |
| Parties | Rose DEMBICER, as Executrix of the Estate of Sam Dembicer, Deceased, Plaintiff, v. Edward H. ROSENTHAL, M.D., Defendant. |
| Decision Date | 26 December 1962 |
| Court | United States State Supreme Court (New York) |
This is a malpractice case tried by court and a jury. After the action started the plaintiff died from causes unrelated to this case. During trial the title of the action was amended to read: 'Rose Dembicer, as Executrix of the Estate and Chattels of Sam Dembicer, deceased, Plaintiff, against Edward H. Rosenthal, M.D., Defendant.' The verdict of the jury was for the plaintiff in the sum of $8,000. Motions were made by counsel for defendant to dismiss the action at the close of the entire case and to set aside the verdict of the jury as contrary to the weight of the evidence. Decisions were reserved on all motions.
The facts briefly are that the decedent, after consulting his family doctor, was referred to the defendant for an operation known as thyroidectomy. The plaintiff's witnesses testified that before the operation the decedent's speech was normal and after the operation they described it as ranging from hoarseness to a whisper, which continued until his death, with only slight improvement, if any.
The plaintiff and defendant both had medical experts testify as to proper procedures to be followed for this type of operation. The standard operational procedure is to operate without isolating the recurrent laryngeal nerve which innervates the muscle of the vocal cord; and the Leahy method is to first isolate the said nerve before the removal of the thyroid. All of the medical testimony was to the effect that both procedures were considered acceptable surgical techniques and have been so held in many reported cases. (DiFilippo v. Preston, 3 Storey 539, 53 Del. 539, 173 A.2d 333; Roberts v. Woods, D.C., 206 F.Supp. 579.)
A recovery by the plaintiff in this case could only be predicated on proof that the defendant was unskilful or negligent. (Robbins v. Nathan, 189 App.Div. 827, 179 N.Y.S. 281.) There was no such proof in this case. The fact that there was hoarseness after the operation is not of itself enough to prove negligence or unskilfulness on the part of the defendant.
The defendant was well...
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Perin v. Hayne
...injury to the laryngeal nerve during thyroidectomies see Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964); Dembicer v. Rosenthal, 53 Misc.2d 777, 279 N.Y.S.2d 943, aff'd 20 A.D.2d 758, 247 N.Y.S.2d 862 (1962); Roberts v. Wood, 206 F.Supp. 579 (D.C.Ala. 1962); Di Filippo v. Preston, 53 ......
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De Falco v. Long Island College Hospital
...days after the operation did not automatically spell out negligence on the part of the surgeon or the hospital, Cf Dembicer v. Rosenthal, 53 Misc.2d 777, 279 N.Y.S.2d 943 (Supreme Court, Queens County) aff'd, 20 A.D.2d 758, 247 N.Y.S.2d 862 (Second Dept. 1964). Expert medical testimony was ......
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Scott v. Brooklyn Hosp.
...953, 244 N.E.2d 468; Kinsley v. Carravetta, 244 App.Div. 213, 279 N.Y.S. 29, affd. 273 N.Y. 559, 7 N.E.2d 691; Dembicer v. Rosenthal, 53 Misc.2d 777, 279 N.Y.S.2d 943, affd. 20 A.D.2d 758, 247 N.Y.S.2d 862). Also, hospitals, whether charitable or profit-making, are liable to patients for in......