Dooley v. Skodnek

• Decision Date: 20 June 1988
• Citation: 529 N.Y.S.2d 569,138 A.D.2d 102
• Parties: Patricia Ann DOOLEY, et al., Respondents, v. Kenneth SKODNEK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 569

529 N.Y.S.2d 569

138 A.D.2d 102

Patricia Ann DOOLEY, et al., Respondents, v. Kenneth SKODNEK, Appellant.

Supreme Court, Appellate Division Second Department.

June 20, 1988.

Kissam & Halpin, New York City (Leslie Trager, of counsel), for appellant.

Rheingold & McGowan, P.C., New York City (Paul D. Rheingold, of counsel), for respondent Patricia Ann Dooley.

Fisher & Seidner, P.C., Babylon (Aaron Lebenger, of counsel), for respondent Thomas Dooley.

Before MANGANO, J.P., and BROWN, LAWRENCE and SPATT, JJ.

PER CURIAM.

In April 1978 the plaintiff Patricia Ann Dooley (hereinafter the plaintiff) came under the care of the defendant, a psychiatrist, while she was hospitalized at a psychiatric institution after having made a suicide attempt. The plaintiff remained under the defendant's care through July 1980 during which time the defendant prescribed the antipsychotic drug Mellaril. It is undisputed that Mellaril caused the plaintiff to suffer pigmentary retinopathy, resulting in her being rendered legally blind.

At the trial, the plaintiff presented evidence of both negligence on the part of the defendant and lack of her informed consent. After the presentation of all the evidence in the case, the trial court granted the plaintiffs' motion for judgment as a matter of law on both theories. With respect to the negligence claim, the court found that the defendant's testimony that "he was not aware of all of the side effects of the Mellaril * * * and [he] was not aware of the symptoms of the side effects of the Mellaril he was [then] prescribing * * * for use by the plaintiff" supported a finding of a departure from good and accepted psychiatric practice as a matter of law, which was a proximate cause of the injuries sustained by the plaintiff.

The cause of action predicated on the theory of lack of informed consent (Public Health Law § 2805-d), the trial court determined, was similarly established as a matter of law inasmuch as the defendant could not possibly have advised the plaintiff of the potential for blindness since he himself was not cognizant of this side effect. We disagree with the trial court's assessment of the evidence and, accordingly, reverse.

Upon a motion for a judgment as a matter of law, the trial court's function is not to weigh the evidence, but rather, in taking the case from the jury, to determine "that by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence * * * presented" ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809; see, Lipsius v. White, 91 A.D.2d 271, 276-277, 458 N.Y.S.2d 928).

In connection with the plaintiff's claim alleging negligence, the defendant testified consistently that he recognized that Mellaril could cause pigmentary retinopathy, a condition which would result in a diminution of vision. Indeed, his knowledge was demonstrated by his very actions in discontinuing the medication upon initially learning of the plaintiff's vision difficulties and referring the plaintiff to an ophthalmologist. Critical in the evaluation of the defendant's testimony is the opinion of the defendant's expert, Dr. Abraham Halpern, a board certified psychiatrist, who stated that Dr. Skodnek had in all respects followed good and accepted medical practice. He specifically testified as follows:

"Q: Was it known in 1978 as to whether pigmentary retinopathy could progress to a level where it could cause blindness?

"A: Yes, there is a certain percentage of cases that would go on to blindness.

"Q: And so that was known in 1978 at the time that this defendant [had] prescribed Mellaril to Mrs. Dooley, correct?

"A: Yes, sir.

"Q: And if the defendant did not know that in 1978, would that be a departure from accepted standards of practice in 1978?

"A: Well, if he knew that it caused pigmentary retinitis, that would be satisfactory.

"Q: In other words he's not required to know that the injury could progress to a state where it could actually deprive a person of their sight?

"A: I would say that the reason I say it would be appropriate, the standard could just include retinitis, is that if the blindness ultimately that might eventuate is due to the pigmentary retinitis, then that would occur only after a prolonged period of time. You have to stop the Mellaril long before pigmentary retinitis goes on to blindness".

Thus, despite Dr. Skodnek's candid admission that he was not aware of the potential for blindness, his expert's testimony that the defendant's knowledge that prolonged use of the drug could cause pigmentary retinitis was a sufficient basis from which the jury could conclude that the defendant did not depart from accepted standards of psychiatric practice in his treatment of the plaintiff.

As to the claim of lack of informed consent, based upon Dr. Skodnek's testimony and that of his expert, we find sufficient proof in the record for the purpose of raising a factual issue for the jury's determination. When the plaintiff first came under the defendant's...