Fogal v. Genesee Hospital

• Decision Date: 01 June 1973
• Citation: 41 A.D.2d 468,344 N.Y.S.2d 552
• Parties: John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Respondents, v. The GENESEE HOSPITAL et al., Appellants, Joseph E. Geary and Richard C. Templeton, Defendants (two cases). John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Appellants, v. The GENESEE HOSPITAL et al., Defendants, Joseph E. Geary, Respondent. John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Respondents, v. The GENESEE HOSPITAL et al., Defendants, Richard C. Templeton, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 552

344 N.Y.S.2d 552

41 A.D.2d 468

John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Respondents, v. The GENESEE HOSPITAL et al., Appellants, Joseph E. Geary and Richard C. Templeton, Defendants (two cases).

John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Appellants, v. The GENESEE HOSPITAL et al., Defendants, Joseph E. Geary,

Respondent.

John FOGAL and John Fogal, as Administrator of the Goods, Chattels and Credits of Edith Fogal, Respondents, v. The GENESEE HOSPITAL et al., Defendants, Richard C.

Templeton, Appellant.

Supreme Court, Appellate Division, Fourth Department.

June 1, 1973.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester, for appellants Gorman-Rupp Ind. and American Hospital Supply (Percival D. Oviatt, Jr., Rochester, of counsel).

Lines, Wilkins, Osborn & Beck, Rochester, for appellant, Genesee Hospital (Stephen V. Lines, Rochester, of counsel).

Martin, Clearwater & Bell, Syracuse, for defendants Geary and Templeton (Donald J. Fager, Syracuse, of counsel).

Vincenti & Schickler, New York City, for respondents Fogal (Arnold S. Schickler, New York City, of counsel).

Before WITMER, J.P., and CARDAMONE, SIMONS and HENRY, JJ.

OPINION

SIMONS, Justice:

These are cross-appeals from a jury verdict and the judgment on it and from various intermediate rulings in an action seeking damages for personal injuries to the decedent, Edith Fogal, and derivative damages sustained by her husband, John Fogal.

Edith Fogal was injured as the result of the use of a hypothermia blanket to cool her body temperature during surgery. After exposure to the cold, Mrs. Fogal's feet, thighs and buttocks became necrotic necessitating excision of parts of her legs and buttocks and amputation of parts of both feet. She died February 21, 1971 before the trial of this action from causes unrelated to these injuries. Her earlier testimony taken during an examination before trial was read to the jury.

On January 29, 1965 Mrs. Fogal was admitted to the defendant Genesee Hospital under the care of defendant Dr. Geary, a vascular surgeon. She was diagnosed as 'probable renal hypertension, and small abdominal aortic aneurysm' and underwent surgery on February 11, 1965 in an attempt to repair the artery or, as proved necessary, to remove the kidney. Because this surgery involves stopping the blood supply to portions of the body for extended periods of time, recognized surgical practice suggested the use of hypothermia to cool and slow the body's metabolism during the operation. Dr. Geary ordered this procedure. It was administered by the anesthesiologist, defendant Dr. Templeton, by use of an Aquamatic K-Thermia machine which was manufactured by defendant Gorman-Rupp Industries, Inc. and sold to The Genesee Hospital by defendant American Hospital Supply Co., Inc. The machine was purchased by the hospital in October, 1964 and used prior to February 11, 1965. It was stored, maintained and supplied to the operating room by hospital personnel. After Mrs. Fogal's surgery the machine was ordered removed from service by officials of the hospital until tested by an independent laboratory in June, 1965. The laboratory determined that the electronic control unit designed to automatically maintain the patient's body at a constant temperature was defective. The manual controls were operative.

The hypothermia was accomplished by use of a blanket placed under the patient's body on the operating table. The blanket was cooled or warmed by circulating alcohol through tubes in it at pre-set temperatures. The points at which the body rested on the blanket were covered to prevent contract injuries and there is no claim here that Mrs. Fogal's injuries resulted from contact with the blanket. The temperature of the coolant is regulated by control units, either automatic or manual, monitored by the anesthesiologist. By pre-setting the 'cold' dial to a desired temperature, in this case 48 degree F., ¹ the blanket will cool to that level. Similarly, there is a 'high' dial for warming liquid to that level. The temperature at which it is desired to maintain the body during surgery is established by a third dial adjustment, in this case set at 89.6 degrees F. (later raised to 93.2 degrees F.). When set on automatic the machine is designed to cool until the desired body temperature (89.6 degrees F.) is reached and then the automatic adjustment takes over and recirculates the warm liquid in the tubes in place of the cold to warm the blanket so that it maintains the patient at the prescribed body temperature. The hot and cold liquids alterate to keep the temperature of the body constant as recorded by an esophogeal probe or thermometer. It is one of plaintiff's contentions that since the automatic controls were subsequently found to be defective, the body never warmed but was continuously cooling throughout the time the patient was in the operating room from 8:00 a.m. until 1:05 p.m. The defendants claim that this is patently untrue because all the recorded body temperatures on the hospital charts, as read from the machine's gauges (found by the laboratory to be accurate to 5 degrees) show that the proper body temperature was maintained.

At the time of the operation, Mrs. Fogal was 52 years of age, she had a prior medical history which included a heart attack 5 years before, hypertension and an unspecified problem with her 'cervical arteries' in 1961. She was considered a poor risk for surgery by Dr. Geary and there is a notation on the hospital chart written by Dr. Templeton, 'Poor risk', underlined several times and underneath that is written, 'for hypothermia and endo-anesth'. Dr. Templeton testified that this notation did not evidence any apprehended danger in the use of hypothermia; that it was intended to indicate that Mrs. Fogal was a poor risk for surgery and that hypothermia was to be used.

Plaintiff's complaint sought recovery from the defendant doctors on the theories of negligence and lack of informed consent, from the hospital for negligence and from the manufacturer and supplier for negligence. Although the plaintiff's complaint did not plead a cause of action against the manufacturer or supplier specifically denominated as breach of warranty, the court submitted the case to the jury against those defendants on both negligence and warranty (see Van Gaasbeck v. Webatuck Central School, 21 N.Y.2d 239, 245, 287 N.Y.S.2d 77, 81, 234 N.E.2d 243, 246; Diemer v. Diemer, 8 N.Y.2d 206, 211--212, 203 N.Y.S.2d 829, 833--834, 168 N.E.2d 654, 657--658).

The court dismissed the causes of action based on lack of informed consent and the case against the doctors and the hospital was submitted to the jury solely on the question of negligence. The court charged the doctrine of res ipsa loquitur as to them. A verdict was rendered against the manufacturer Gorman-Rupp Industries, Inc., the supplier American Hospital Supply Co., Inc., and the hospital. Verdicts of no cause of action were returned in favor of Dr. Geary and the jury was unable to agree on a verdict in the action against Dr. Templeton. The court apportioned the verdict among the three defendants held liable and ordered a new trial as to Dr. Templeton.

These cross-appeals raised questions (1) whether the trial court properly dismissed the causes of action against the doctors based on lack of informed consent, (2) whether the case was properly submitted as to one or all of the defendants on the theory of res ipsa loquitur, and (3) whether the verdict against the manufacturer and supplier was supported by the evidence.

We conclude that a new trial is necessary on the issue of informed consent as to Dr. Geary, and on the issue of informed consent and negligence as to Dr. Templeton. The verdicts against the hospital, the manufacturer and its supplier should be affirmed.

Under New York law a physician may be liable for failure to obtain the informed consent of his patient to a surgical procedure (Darrah v. Kite, 32 A.D.2d 208, 210--211, 301 N.Y.S.2d 286, 290; Fiorentino v. Wenger,26 A.D.2d 693, 272 N.Y.S.2d 557, revd. on other grounds, 19 N.Y.2d 407, 413, 280 N.Y.S.2d 373, 376, 227 N.E.2d 296, 298; DiRosse v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623). The cause of action is not based on any theory of negligence but is an offshoot of the law of assault and battery. Any non-consensual touching of a patient's body, absent an emergency, is a battery and the theory is that an uninformed consent to surgery obtained from a patient lacking knowledge of the dangers inherent in the procedure is no consent at all. There must be 'a reasonable disclosure * * * of the known dangers * * * incident to' the proposed treatment (DiRosse v. Wein, supra).

The definition of this duty to disclose and its scope have apparently never been explored by the courts of this state. As might be expected, there are conflicting views on the subject in other jurisdictions. Those views are thoroughly analyzed by the Court of Appeals in Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772. Some jurisdictions have held that the duty to disclose and the required scope of the disclosure must be established by expert medical testimony of the standards of the medical profession. In Canterbury, the court held that the duty and scope of disclosure arise apart from medical considerations and are not governed by the profession's standards of due care but by the general standard of conduct reasonable under all the circumstances. This general standard recognizes the patient's prerogative to decide on the projected treatment whereas a medical standard is largely self-serving. We consider the Canterbury rule preferable and hold that a doctor is obliged to divulge to his patient the risks which singly or in combination, tested by general considerations of reasonable disclosure under all the circumstances, will materially affect the patient's...