Fiorentino v. Wenger

• Court: New York Supreme Court — Appellate Division
• Citation: Fiorentino v. Wenger, 26 A.D.2d 693, 272 N.Y.S.2d 557 (N.Y. App. Div. 1966)
• Decision Date: 12 July 1966
• Parties: Jean FIORENTINO, administratrix of the estate of Michael Fiorentino, deceased, Respondent, v. H. Leslie WENGER et al., Appellants.

Page 557

272 N.Y.S.2d 557

26 A.D.2d 693

Jean FIORENTINO, administratrix of the estate of Michael Fiorentino, deceased, Respondent, v. H. Leslie WENGER et al., Appellants.

Supreme Court, Appellate Division, Second Department.

July 12, 1966.

Before UGHETTA, Acting P.J., and CHRIST, HILL, BENJAMIN and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a malpractice action against a physician and a hospital to recover damages for the wrongful death and conscious pain and suffering of plaintiff's decedent, defendants appeal from a judgment of the Supreme Court, Nassau County, entered June 9, 1965, upon a jury verdict in favor of plaintiff against each of them. The amount of the verdict was reduced upon plaintiff's stipulation after the conditional grant of defendants' motion to set aside the verdict.

Judgment affirmed, with costs.

It was virtually undisputed that plaintiff's decedent, her fourteen year old son, was caused to suffer an exsanguinating hemorrhage as the result of an operation performed upon him by the defendant physician at the defendant hospital for the purpose of correcting the decedent's scoliotic condition. The surgery performed was not the generally accepted medical treatment in the community for scoliosis, but was a procedure utilized in this country only by the defendant physician, who had first developed it five years before the operation and death in the case at bar.

It was also virtually undisputed that over the course of those five years, in at least five of the thirty-five instances in which the procedure was utilized by the defendant physician prior to the operation here involved, there had been unexpected and untoward results. Approximately one year before the operation herein, one of the defendant physician's patients had been caused to suffer an immediate paralysis when one of the screws inserted into her vertebral column to anchor the steel bar or 'spinal jack' (which was intended to support and hold the spine in a straight position) pierced the spinal canal and severed the spinal cord. As a result, the hospital where that operation had been performed withdrew permission for the defendant physician's use of its facilities for this type of procedure.

We are of the opinion that, under the facts and circumstances disclosed by this record, including the fact that no immediate emergency existed, the defendant physician was obligated to mark a disclosure to the parents of his infant that the procedure he proposed was novel and unorthodox and that there were risks incident to or possible in its use (Di Rosse v. Wein, 24 A.D.2d 510, 261...