Garcia v. Von Micsky

• Decision Date: 17 July 1979
• Docket Number: No. 639,D,639
• Citation: 602 F.2d 51
• Parties: Constance GARCIA and Frank Garcia, Plaintiffs-Appellants, v. Helen F. VON MICSKY, As Administratrix of the Estate of Lajos Von Micsky, Deceased, Defendant-Appellee. ocket 78-7438.
• Court: U.S. Court of Appeals — Second Circuit

Page 51

602 F.2d 51

Constance GARCIA and Frank Garcia, Plaintiffs-Appellants, v. Helen F. VON MICSKY, As Administratrix of the Estate of

Lajos Von Micsky, Deceased, Defendant-Appellee.

No. 639, Docket 78-7438.

United States Court of Appeals, Second Circuit.

Argued Feb. 20, 1979.

Decided July 17, 1979.

Albert A. Juron, New York City (Juron & Minzer, P.C., New York City, of counsel), for plaintiffs-appellants.

Arthur N. Seiff, New York City (Anthony L. Schiavetti, New York City, of counsel), for defendant-appellee.

Before LUMBARD, OAKES and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment dismissing appellants' complaint in a medical malpractice action following a jury trial before Pierce, J., in the Southern District of New York. The sole issue presented for review is whether the district judge erred in dismissing appellants' separate cause of action for breach of warranty without submitting it to the jury.

In December 1973, appellant Constance Garcia, who had had several miscarriages and whose second daughter had been delivered prematurely by caesarian section, became pregnant again. In January 1974, she entered St. Luke's Hospital in New York City for an abortion and sterilization by way of tubal ligation. The surgery was performed by Dr. Von Micsky, who died before this action was commenced.

Prior to the operation, Mrs. Garcia signed a written authorization for the proposed surgery which read in part as follows:

I understand that the proposed procedure is usually virtually permanent in its effect and usually irreversible, although it is possible that I may not be completely or permanently sterile after the operation. I have been informed of other methods of birth control.

The jury, in response to a specific interrogatory submitted by the trial judge, found that Mrs. Garcia had been informed that there was a possibility she might not be completely or permanently sterile following the operation. Moreover, appellants' medical expert testified that obstetricians and gynecologists generally recognize the possibility that a tubal ligation may not be 100% Effective in preventing future pregnancies. ¹ Nonetheless, Mr. and Mrs. Garcia insist that they are entitled to damages from Dr. Von Micsky's estate because Mrs. Garcia did become pregnant in 1975 and underwent another abortion.

Their claim in this Court is not based upon negligence or malpractice. That claim was rejected in the district court, and appellants do not contend that this was error. Appellants' only contention is that the trial court erred in dismissing their cause of action for breach of warranty without submitting it to the jury. The warranty was allegedly made orally by Dr. Von Micsky to Mrs. Garcia some five months after the surgery had been performed. Mrs. Garcia could not testify concerning Dr. Von Micsky's statements because the New York legislature, in its wisdom, has decided that a plaintiff may not testify about communications with a deceased defendant who cannot speak in his own defense. See C.P.L.R. § 4519. However, by a stroke of good fortune, Mrs. Garcia's sister-in-law happened to overhear what Dr. Von Micsky said and testified in her behalf.

The sister-in-law stated that she accompanied Mrs. Garcia to St. Luke's Hospital in June 1974 and remained in a waiting room, which served several doctors, while Mrs. Garcia visited Dr. Von Micsky in his office. After the visit, Dr. Von Micsky entered the waiting room with Mrs. Garcia and, in the sister-in-law's hearing, told Mrs. Garcia "that she had nothing to worry about, that it was impossible for her, you know, to have any more children and to try to relax and to take it easy."

The district judge, pointing out that the doctor's statement was made long after he had completed his surgery and that it was not part of another contractual arrangement, held as a matter of law that it was not a warranty. This is the generally accepted rule and is the law of New York. Clegg v. Chase, 89 Misc.2d 510, 511, 391 N.Y.S.2d 966 (1977); Sard v. Hardy, 34 Md.App. 217, 239, 367 A.2d 525, 537 (1976), Aff'd on this point and reversed on other grounds, 281 Md. 432, 451, 379 A.2d 1014, 1026 (1977); Herrera v. Roessing, 533 P.2d 60, 61-62 (Colo.App.1975); Wilson v. Blair, 65 Mont. 155, 167, 211 P. 289, 293-94 (1922).

To hold as appellants urge in this case would be to elevate the deceased doctor's therapeutic reassurance of his patient to the status of a guaranty, made without contract or compensation and at the risk of absolute liability. This does not make good sense, either medically or legally. See Sard v. Hardy, supra, 281 Md. at 452-53, 379 A.2d at 1027; Herrera v. Roessing, supra, 533 P.2d at 61; Rogala v. Silva, 16 Ill.App.3d 63, 66-67, 305 N.E.2d 571, 574 (1973). The judgment appealed from is affirmed.

OAKES, Circuit Judge (dissenting):

There was no negligence. The jury found there was no uninformed consent. There was no warranty prior to the performance of the surgery.

However, appellants pleaded and there was evidence evidently admissible under the New York dead man's statute ¹ to the effect that five months after the operation the surgeon guaranteed its success without making the tests that he could have made to verify whether the tubal ligation had been successful. There was also evidence that Mrs. Garcia relied on the guarantee and did so to her detriment, having an unwanted pregnancy necessitating, in view of her condition, an abortion. The question is then whether New York law which to some extent follows the Restatement (Second) of Contracts § 90 position ² on promissory estoppel's serving as a substitute for consideration, See Bethlehem Fabricators, Inc. v. BOAC, 434 F.2d 840, 844 (2d Cir. 1970); Spiegel v. Metropolitan Life Insurance Co., 6 N.Y.2d 91, 188 N.Y.S.2d 486, 160 N.E.2d 40 (1959), would apply directly or by analogy in this situation and accordingly whether the trial court should have dismissed the count based on this post-surgical assurance of success.

To elaborate, appellant's complaint alleged that the doctor "expressly and impliedly represented to the plaintiff Constance Garcia that his diagnoses, surgical procedures and subsequent treatment and tests would And did result in her sterility" (emphasis added). The testimony of Mrs. Gutierrez, Mrs. Garcia's sister-in-law, was also to the effect that the doctor told Mrs. Garcia that the operation Had made her sterile, that is, "that she had nothing to worry about, that it was impossible for her . . . to have any more children . . . ." ³ Appellants' counsel argued in opposition to appellee's motion to dismiss that the statement was a separate promise made post-operatively as to the state of Mrs. Garcia's condition at that time. He suggested that the promise was tantamount to a wrong diagnosis that could be characterized as giving rise to an "estoppel, breach of warranty or whatever." Both the complaint and the evidence therefore clearly set forth a theory of recovery based upon the separate statement made at the check-up visit five months after the operation. What the district court said in dismissing the cause of action was that it "(did) not find that there is sufficient evidence to warrant any determination by the jury that an agreement came into existence that was in the nature of a guarantee of sterility." But see United States v. Consolidated Edison Co. of New York, 452 F.Supp. 638, 653 (S.D.N.Y.1977), Aff'd on other grounds, 580 F.2d 1122 (2d Cir. 1978).

Could liability arise from this reassurance under New York law because of Mrs. Garcia's reliance? If so, the jury should have been allowed to determine whether Dr. Von Micsky made the statement...