De Falco v. Long Island College Hospital

• Decision Date: 11 January 1977
• Citation: 90 Misc.2d 164,393 N.Y.S.2d 859
• Parties: Vincent DE FALCO, Plaintiff, v. LONG ISLAND COLLEGE HOSPITAL and Dr. Norman Stahl, Defendants.
• Court: New York Supreme Court

Page 859

393 N.Y.S.2d 859

90 Misc.2d 164

Vincent DE FALCO, Plaintiff, v. LONG ISLAND COLLEGE HOSPITAL and Dr. Norman Stahl, Defendants.

Supreme Court, Kings County.

Jan. 11, 1977.

Anthony J. Pirrotti, Brooklyn, for plaintiff.

Furey & Mooney, Hempstead, Jules L. Gerver, Hempstead, of counsel, for defendant, Long Island College Hospital.

Martin, Clearwater & Bell, New York City, Richard A. Young, Peter C. Kopff, New York City, of counsel, for defendant, Dr. Stahl.

THOMAS R. JONES, Justice.

The defendants, Dr. Norman Stahl and Long Island College Hospital have moved to set aside a jury verdict for the plaintiff in the sum of $375,000, as apportioned against them--60% And 40% Respectively, in this malpractice action, for failure of proof. They contend that by no rational process could the jury base a finding in favor of the plaintiff upon the evidence presented. (McDonald v. Metropolitan St. Ry., 167 N.Y. 66, 60 N.E. 282 (1901)). Each defendant seeks judgment as a matter of law, (CPLR 4401), on the ground that there is insufficient evidence to warrant a verdict for the plaintiff. In the alternative both defendants have moved to set aside the verdict and for a new trial, on the ground that the damages awarded are excessive (CPLR 4404(a)).

The defendants have renewed their motions for judgment, made at the end of plaintiff's case, on the ground that the plaintiff by his evidence has failed to make out a prima facie case, so that each defendant is entitled to judgment, as a matter of law.

The jury found that the plaintiff had not been reasonably informed about the significant risks of cataract surgery to enable a reasonably prudent person in his circumstances to decide whether or not to submit to the operation (Cf Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199, 207, 366 N.Y.S.2d 163, 171 Second Dept., March, 1975). The jury also found, however, that plaintiff would nevertheless have submitted to the operation even if he had been reasonably informed about all of the significant hazards.

Upon a careful review of the evidence, which has been arranged in chronological order, for evaluation, (see Appendix 1), the Court concludes that the jury could not have fairly found that the defendant physician and hospital, committed any act of negligence which injured the plaintiff. The Court can conceive of no reasonable interpretation of the testimony to support the conclusion that the defendant committed malpractice in May and June, 1970, which caused the plaintiff to lose his right eye on January 21, 1976. (Cornwell v. Safeco Ins., 42 A.D.2d 127, 136--137, 346 N.Y.S.2d 59, 69--70 and 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.09).

The plaintiff, Vincent De Falco, was 75 years old on May 12, 1970, when he was admitted to Long Island College Hospital by Dr. Norman Stahl, an ophthalmologist, for the surgical removal of a senile cataract from his right eye. Mr. De Falco had consulted three other ophthalmologists who concurred with Dr. Stahl's diagnosis and recommendation that surgical intervention was required.

The plaintiff consented to the procedure. On May 14, 1970, Dr. Stahl performed a cataract extraction to remove the opacity from the plaintiff's right eye. The operation was uneventful, except for the surgeon's note that an 'hyphema', i.e., a 'drop of blood' remained in the eye. Dr. Stahl, who was the only medical witness to testify in the case, was called by the plaintiff, and said that the hyphema was one of the normal risks of cataract surgery. Dr. Stahl testified, without contradiction, that an hyphema was 'usually absorbed by the body within a few days'.

The drop of blood was not resolved. On May 17th, three days after the operation, the hyphema had degenerated into a 'total hyphema'; notwithstanding the continued administration of drugs and medicaments by Dr. Stahl and hospital staff physicians. This condition was complicated by an infection which was discovered by Dr. Stahl on May 26th or May 27, 1970. Laboratory tests disclosed that the infection was caused by enterobacter and staph albus germs. Enterobacter is an organism found in the intestinal tract. Staph albus is a germ found in the air. Neodecadron, an antibiotic cortisone mixture, was prescribed post-operatively by Dr. Stahl, as a prophylactic against infection. The drug was administered continuously for nine or ten days following surgery. The plaintiff attempted to prove that use of neodecadron was contraindicated for the control of enterobacter and staph albus germs. Dr. Yale, a PhD in organic chemistry, testified for the plaintiff concerning the properties of neodecadron. This doctor of philosophy in chemistry was not qualified as an expert in the science of pharmacology, which concerns the value and reaction of drugs. He possessed no medical experience whatsoever in respect of the efficacy of neodecadron in the treatment of infections under clinical conditions. The narrow gauge of his expertise and lack of any medical training rendered Dr. Yale's testimony only marginally useful to explain the nature of the antibiotic used in the treatment of the plaintiff's condition. In any event, Dr. Yale was not equipped to testify that any negligence or departure from accepted medical standards occurred when neodecadron was administered to control the plaintiff's eye infection, either as a prophylaxis or after the infection became apparent.

Despite the continued administration of a variety of antibiotics and antidotes over a period of twenty to twenty-five days, in an effort to resolve the hyphema and overcome the infection, on June 15th, the patient was discharged from the hospital with an 'Iris Prolapse due to corneal infection'. Dr. Stahl noted that his condition was 'unchanged', and added that 'at this point, it appears that there is no reason to keep the patient here any longer. No surgical intervention at this time would be appropriate, due to the corneal infection.'

Four months later, on October 19, 1970, as plaintiff continued under the care and treatment of the defendant, Dr. Stahl, he was admitted to another hospital for the repair of the Iris Prolapse, which had developed at Long Island College Hospital. The On January 21, 1976, Mr. De Falco's right eye was surgically removed.

diagnosis was that scar tissues had formed from the infection, which caused the Iris Prolapse. On October 20, 1970, Dr. Stahl performed a second surgical operation to repair the old Iris Prolapse. He then discovered that it was 'firmly scarred down'. The plaintiff was discharged from this hospital several days later, with his condition substantially unchanged. Dr. Stahl continued to treat the plaintiff until November 29, 1970.

THE HYPHEMA: A DROP OF BLOOD IN THE PLAINTIFF'S EYE; NOT A RES IPSA LOQUITUR HAPPENING

A drop of blood, called an hyphema, was found in plaintiff's eye after the operation. Dr. Stahl testified that this phenomenon was one of the risks of cataract surgery; that a post operative hyphema was usually absorbed by the body within a short time. The plaintiff offered no medical proof that the discovered hyphema was caused by any negligence of the surgeon. No expert testified that the post-operative hyphema was evidence of a departure from good medical practice.

Plaintiff attempted to use a quotation from the textbook of Dr. Norman Jaffe, entitled 'Cataract Surgery and its Complications', which stated that hyphema 'May be the result of poor incision or inadequate suturing' (emphasis added), to prove that Dr. Stahl had been negligent. Although the defendant acknowledged Jaffe's book to be an authoritative treatise on Ophthalmic surgery, his concession could not serve as a substitute for expert medical proof. The textbook could certainly not be used to establish that the presence of an hyphema after surgery was Per se, a sign of negligence or proof of malpractice, i.e., a departure from good surgical practice. The Court permitted cross examination of Dr. Stahl in regard to Dr. Jaffe's textbook statements, to enable plaintiff's counsel to challenge the witness' competency and the accuracy of his conclusions. Those quotations did not become evidence in chief on the issues in the case. (Cf McCormick on Evidence, 2nd ed. Sec. 321, pg. 244, and Richardson on Evidence, 10th ed. § 373, p. 352, and cases cited therein). Moreover, the word 'may' in the Jaffe quotation renders that statement ineffectual to prove any contradiction in Dr. Stahl's explanation of the hyphema phenomenon.

The sophisticated science of cataract surgery is beyond the ken of ordinary laymen. A post-operation hyphema was not a Res ipsa loquitur event. Cf Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455, 460, Massa v. Nippon Yusen Kaisha, 264 N.Y. 283, 190 N.E. 641. The thing could not speak for itself, as did the circumstances in the typical Res ipsa loquitur cases of Griffin v. Norman, 192 N.Y.S. 322 (Supreme Court, Appellate Term, 1st Dept, 1922), where a dentist extracted the wrong tooth while patient was under anesthetic, and Fogal v. Gennesee Hospital, 41 A.D.2d 468, 344 N.Y.S.2d 552 (4th Dept. 1973), where a patient suffered frostbite from use of a hypothermia blanket in vascular surgery, necessitating amputation of the lower extremities. Obvious medical 'accidents' such as these clearly evidenced negligence Per se. An hyphema was not of this character. It was not an occurrence that contained within itself any basis for an inference of negligence--Richardson on Evidence, 10th ed. Sect. 93. The trial Court in Charlton v. Montefiore Hospital, 45 Misc.2d 153, 256 N.Y.S.2d 219 (Supreme Court, Queens County, 1965), at page 157, 256 N.Y.S.2d at page 224, said:

'The Court, in the absence of medical testimony, cannot conclude that a drooping eyelid, following upon an operation to the eye, was caused by negligence'.

Like the drooping eyelid in Charlton supra, the record in this case is barren of expert testimony to prove that an hyphema, following...