Dries v. Gregor, 1

• Decision Date: 24 January 1980
• Docket Number: No. 4,No. 2,No. 3,No. 1,1,2,3,4
• Citation: 72 A.D.2d 231,424 N.Y.S.2d 561
• Parties: Nancy H. DRIES and Paul Dries, Appellants, v. David C. GREGOR, M. D., Respondent, Alan Henderson, M. D., et al., Defendants. AppealNancy H. DRIES and Paul Dries, Appellants, v. Prahladkumar J. AGARWAL, M. D., Respondent, David C. Gregor, M. D., et al., Defendants. AppealNancy H. DRIES and Paul Dries, Appellants, v. David C. GREGOR, M. D., et al., Defendants, Alan Henderson, M. D. and L. Miller Harris, Respondents. AppealNancy H. DRIES and Paul Dries, Appellants, v. MERCY HOSPITAL OF WATERTOWN, Respondent, David C. Gregor, M. D., et al., Defendants. Appeal
• Court: New York Supreme Court — Appellate Division

Page 561

424 N.Y.S.2d 561

72 A.D.2d 231

Nancy H. DRIES and Paul Dries, Appellants, v. David C. GREGOR, M. D., Respondent, Alan Henderson, M. D., et al., Defendants. Appeal No. 1.

Nancy H. DRIES and Paul Dries, Appellants, v. Prahladkumar J. AGARWAL, M. D., Respondent, David C. Gregor, M. D., et al., Defendants. Appeal No. 2.

Nancy H. DRIES and Paul Dries, Appellants, v. David C. GREGOR, M. D., et al., Defendants, Alan Henderson, M. D. and L. Miller Harris, Respondents.

Appeal No. 3.

Nancy H. DRIES and Paul Dries, Appellants, v. MERCY HOSPITAL OF WATERTOWN, Respondent, David C. Gregor, M. D., et al., Defendants. Appeal No. 4.

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1980.

Williams, Micale & Wells, Syracuse, for appellants (Peter N. Wells, Syracuse, of counsel).

Smith, Sovik, Kendrick, McAuliffe & Schwarzer, Syracuse, for respondent Gregor (Martin F. Kendrick, Syracuse, of counsel).

Martin, Ganotis, Amsler & Brown, Syracuse, for respondents Henderson and Harris (Paul A. Brown, Syracuse, of counsel).

Wilmott, Wisner, McAloon & Scanlon, Watertown, for respondent Mercy Hospital (Michael D. Saunders, Watertown, of counsel).

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

CARDAMONE, Justice Presiding.

The appeal in this medical malpractice case requires us to state what is the appropriate charge to a jury where plaintiffs' theory of malpractice is based on a lack of informed consent.

A surgical procedure known as a "quadrant resection" of the right breast was performed by defendant Dr. David G. Gregor on plaintiff, Mrs. Nancy Dries, on November 7, 1974 at defendant Mercy Hospital in Watertown, New York. After the surgery, she and her husband, Paul Dries, commenced a medical malpractice suit against the surgeon, the hospital, the pathologist and two anesthesiologists. The action against the pathologist was dismissed prior to trial. A jury trial resulted in judgments of no cause for action in favor of the other defendants. We affirm the judgment with respect to all defendants, except for the surgeon, Dr. Gregor. For the reasons which follow we believe that in his case there should be a new trial limited to the issue of damages only.

After a routine mammogram revealed a "lesion" or suspicious condition in Mrs. Dries right breast, her gynecologist referred her to defendant, Dr. Gregor, a Watertown surgeon. The radiologist's X-ray report revealed a "positive" finding of a lesion 25 mm less than one inch in diameter, which was an indication of a possible cancer. Dr. Gregor was unable to locate a discrete palpable lump in Mrs. Dries' breast by physical examination, and plaintiff herself reported no lump or past history of a lump. On the basis of the radiologist's report and the physical examination of plaintiff, Dr. Gregor advised Mrs. Dries on November 1, 1974 of the advisability for a biopsy in order to ascertain whether the "lesion" was cancerous. Plaintiff agreed to a biopsy procedure which was performed a week later at Mercy Hospital by Dr. Gregor under general anesthesia. During the surgery substantial tissue was removed from Mrs. Dries' right breast. Three segments of tissue each measuring 6 or 7 centimeters 21/2 to 23/4 inches were excised. None of this tissue was found to be malignant.

Plaintiffs' complaint alleged malpractice arising from a lack of informed consent, i. e., that she was neither advised of nor had she consented to a "quadrant resection" or "partial mastectomy" procedure. The complaint also alleged "negligent" malpractice against Dr. Gregor. At the trial Mrs. Dries testified that the terms "quadrant resection" or "mastectomy" had never been mentioned to her by Dr. Gregor or by any of the other doctors. She stated that the only medical term used to describe the proposed surgery was "biopsy". Her understanding of what was to be done derived from a conversation which she and her husband had with Dr. Gregor at his office on November 1, 1974, the week before the operation. She was told that "they are going to just take a snip out of this lump, and then they will send it to the lab to be examined, to see if I do have cancer or not." She testified that after the surgery "the top of my breast was gone" and stated that she had no indication that this was a possible risk she faced in this surgical procedure. Dr. Gregor's testimony did not contradict plaintiff's version of the extent of the consent instructions or explanation given to plaintiffs. He conceded that he could not recall ever using the term "quadrant resection" in his discussion with Mrs. Dries and her husband.

The theory of lack of informed consent in medical malpractice actions presents conceptual difficulties arising from the awkward mixture of assault and battery in a suit based upon negligence. A brief look at their ancestry clarifies their differences. Assault and battery is a descendant of the early English common law action of trespass. Negligence, on the other hand, traces its ancestry back to another ancient common-law writ titled an action of trespass on the case. Originally they were related to each other. The older action of trespass developed new variations which became separate forms of action. One variety was "upon a special case" or, later, simply "trespass on the case". (Plucknett, A Concise History of the Common Law, 2d ed., pp. 335, 336). Trespass was the remedy for direct injuries and trespass on the case for indirect injuries. These common-law actions have now been abandoned in modern practice, particularly the artificial classification of injuries as direct or indirect. The law today looks instead to the intent of the wrongdoer or to his negligence. In their evolution the action of trespass remained as the remedy for all intentional wrongs and action on the case was extended to include injuries which were not intended but were merely negligently inflicted (Prosser, Law of Torts, 4th ed., § 7, p. 28). Trespass on the case, so Plucknett tells us, had become distinct from trespass by 1390, and as early as the sixteenth century had evolved as the remedy for libel and slander, negligence and deceit (Plucknett, supra, at 336). Battery remains by definition an intentional tort, just as its progenitor trespass. One is subject to liability to another for battery if "(a) he acts intending to cause a harmful or offensive contact with the person of the other . . . , and (b) a harmful contact with the person of the other directly or indirectly results" (Restatement of the Law, 2d, Torts, § 13). Negligence as the direct descendant of trespass on the case has a different conceptual basis than battery because negligence includes those unintended wrongs which one actor causes to another.

To encapsulate in a medical malpractice case such divergent legal theories as an intended wrong predicated on a battery and a negligent or unintended wrong is at the very least confusing, if not erroneous. Such a charge presents a lay jury with the nearly impossible task of sorting out legal theories the historic roots and present day definitions of which are mutually exclusive, i. e., one cannot commit an intended and unintended act at the same time.

We believe that medical treatment beyond the scope of a patient's consent should not be considered as an intentional tort or species of assault and battery as it has been viewed in the past (see, e. g., Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92; ¹ Darrah v. Kite, 32 A.D.2d 208, 301 N.Y.S.2d 286). The doctor in a malpractice case is ordinarily not an actor who intends to inflict an injury on his patient and any legal theory which presumes that intent appears to be based upon an erroneous supposition. Instead, the doctor is not one who acts anti-socially as one who commits assault and battery, but is an actor who in good faith intends to confer a benefit on the patient (McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn.L.Rev., 381, 416-424 (1957)). The text writers state that the use of assault and battery terminology has been declining in malpractice suits and that negligence concepts are preferred. Negligence standards which deal with the possession and use of skill and due care better accord with the realities of the physician-patient relationship (1 Louisell and Williams, Medical Malpractice, § 8.09). Further, the choice of legal theory has important ramifications including differing time limitations (CPLR 214, 214-a, 215), whether expert...