Fiorentino v. Wenger

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BREITEL; FULD
• Citation: Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296 (N.Y. 1967)
• Decision Date: 20 April 1967
• Parties: , 227 N.E.2d 296 Jean FIORENTINO, as Administratrix of the Estate of Michael Fiorentino, Deceased, Respondent, v. H. Leslie WENGER, Defendant, and Doctors Hospital, Appellant.

Page 373

280 N.Y.S.2d 373

19 N.Y.2d 407, 227 N.E.2d 296

Jean FIORENTINO, as Administratrix of the Estate of Michael Fiorentino, Deceased, Respondent, v. H. Leslie WENGER, Defendant, and Doctors Hospital, Appellant.

Court of Appeals of New York.

April 20, 1967.

Arnold Davis, New York City, for appellant.

Malcolm B. Rosow, Louis R. Harolds and Aaron L. Ballen, New York City, for respondent.

BREITEL, Judge.

The principal issue is whether a private proprietary has an obligation to a patient and his family using its facilities to make certain that they have given an informed consent to an unusual, dangerous operation performed by their privately retained surgeon. The trial court and the Appellate Division concluded that the hospital had such an obligation, and, based on the jury's verdict, that the obligation had been breached.

The rule has been that a hospital may be held liable in tort for permitting its facilities to be used by an unlicensed person or by a licensed person committing an act of malpractice with the knowledge of the hospital or under circumstances putting it on notice of such wrongful act. To permit recovery in this case would extend the rule to place an enlarged burden on the hospital to ascertain in the event of an unusual and dangerous operation whether an informed consent has been given and, if necessary, to verify the fact of such consent from the patient or his family. For the reasons to be discussed it is concluded that there is no traditional basis to support such an extension of the rule and that to so extend the rule would not be desirable as a matter of public policy.

Plaintiff administratrix sued for wrongful death and conscious pain and suffering. The jury returned a verdict for $42,500 on each cause of action but, under the conditions imposed by the trial court, the recovery was reduced by stipulation to $30,000 for the death cause of action and to $15,000 for conscious pain and suffering. Judgment was rendered against both the surgeon and the hospital. Both appealed and the Appellate Division affirmed unanimously as to the surgeon and affirmed by a divided court, one Justice dissenting, as to the hospital. Only the hospital has appealed to this court.

The surgeon's liability has now been fixed and there remains only the question of the hospital's responsibility. The changed status of the case must be kept constantly in mind, and the hospital's liability distinguished because the evidence establishing the surgeon's responsibility is substantial and the affirmed judgment is now conclusive on that issue.

The facts are as follows. The decedent was a generally healthy, athletic schoolboy of 14 years. He developed a moderate (38%) scoliosis or curvature of the spine. His mother took him to a physician who recommended the patient to the surgeon, Dr. Wenger, an orthopedic specialist. The surgeon recommended a drastic or radical procedure, known as a spinal-jack operation, rather than the customary protracted treatment involving spinal fusion (also a major operation) and the use of a body cast. On the trial it was a disputed issue whether the surgeon had informed the parents of the relative novelty of the spinal-jack operation, the broader details of its execution, or that it was not a procedure generally accepted in the medical community. This issue, of course, is now concluded in favor of plaintiff by the jury verdict and the affirmed judgment.

The surgeon himself had devised the spinal-jack operation and had performed it previously some 35 times. One of these had resulted in paralysis and, eventually, a death which was arguably related to the operation. Some four other operations had been followed by serious complications. The surgeon's procedure had been constantly improved, however, based on his experience with the earlier operations. Concededly, the surgeon was the only one in this country using his technique and at the very best it was not commonly used elsewhere in the world.

The operation performed on decedent last 5 1/2 hours. Two inches were excised from each of seven ribs, and a similar number of bony processes were removed from the spine. The principal artery, the aorta, was detached from the spine so that it would hang freely, and evidently the same was done to the vena cava, the principal vein. Other organs were temporarily pushed aside. Holes were then drilled into vertebrae to receive two screws. The upper screw was 2 1/2 inches long, and the lower somewhat longer. A metal bar of about four inches in length with a turnbuckle was then attached to the screws. First by manual pressure and then by wrench applied to the turnbuckle the spine was straightened. Throughout the operation X rays were taken to verify placement and alignment of the devices. The drastic or radical nature of the operation (and it has been described variously as that) is evident even from this brief statement. Further description would emphasize the gruesome character of the operation, especially, of course, to laymen. The claimed advantage of the operation is that, if successful, it is more certain of achieving the desired result and the patient is ready for normal activity after a brief period of convalescence compared with the year or longer period involved in the spinal fusion and body cast procedure, the usual treatment for this condition.

The operation was performed September 11, 1958. While still in the hospital, the boy developed untoward symptoms and on September 29, 1958 he died of a massive hemorrhage with external effusion of blood. There was disputed expert opinion evidence whether the blood was arterial or venous and, therefore, whether it derived from the aorta or the vena cava, the aorta having received greater manipulation during the operation. The parents refused consent to an autopsy which might have revealed the cause of the hemorrhage. No contention was ever made either by the surgeon or the hospital that the operation was required as a matter of emergency; nor would such a contention have been tenable, even if one accepts the surgeon's disputed testimony that decedent's scoliosis condition was deteriorating progressively.

On the evidence, the jury was entitled to find that the surgeon had never explained sufficiently to the mother the hazards of the operation, the available alternatives, or the fact that the procedure was not employed by anyone else in this country. Nor did the surgeon claim that he had advised the mother that the child might die from the surgery. Of course, he did not regard the operation as involving a greater risk of fatality than most radical major operations. ^*

The surgeon's liability being established, the issue is whether the hospital was guilty of any breach of duty owed by it to the patient or his parents. The hospital's director of surgery testified that he knew the nature of the Wenger spinal-jack operation; that there had been difficulties in earlier operations but that there had been improvements by the surgeon in his techniques; that the surgeon had performed three spinal-jack operations at the hospital without untoward consequences; and that he never inquired of the surgeon to ascertain why he no longer performed the operation at the Hempstead General Hospital. Had such inquiry been made of the surgeon or of the Hempstead hospital, the inquirer would have learned, presumably, that the surgeon had been forbidden to perform any more spinal-jack operations there, as a result of the paralysis of one of his patients following a spinal-jack operation.

Where a professional person provided (employed) by the hospital commits an act of malpractice the hospital may be liable derivatively under the doctrine of Respondeat superior (Bing v. Thunig, 2 N.Y.2d 656, 666, 163 N.Y.S.2d 3, 10, 143 N.E.2d 3, 9). But this doctrine, of course, does not apply where the malpractice is performed by a physician retained by the patient himself (ibid.; 2B Warren, Negligence (3d ed., 1966), § 1.04). Where the treatment is provided by independent physicians, the hospital, and this is especially true of private proprietary hospitals, serves the function only of a specialized facility, not a direct service healing institution (Goldwater v. Citizens Cas. Co., Mun.Ct., 7 N.Y.S.2d 242, affd. 36 N.Y.S.2d 413 (App.Term); Wetzel v. Omaha Maternity & Gen. Hosp. Assn., 96 Neb. 636, 643, 148 N.W. 582 (dis. opn.); Hayt, Hayt and Groeschel, Law of Hospital, Physician and Patient (2d ed., 1952), p. 202).

It should be evident that a hospital generally cannot be held liable, other than derivatively, for another's malpractice. Thus, where, as here, there is no vicarious liability, the plaintiff must establish that the hospital, through its own agents, was guilty of malpractice or other tort concurring in causing the harm. Where a hospital's alleged misconduct involves an omission to act, the hospital will not be held responsible unless it had reason to know that it should have acted within the duty it concededly had (Martindale v. State of New York, 269 N.Y. 554, 199 N.E. 667; Robertson v. Towns Hosp., 178 App.Div. 285, 287--288, 165 N.Y.S. 17). More particularly, in the context of the present case, a hospital will not be held liable for an act of malpractice performed by an independently retained healer, unless it had reason to know that the act of...