Garone v. Roberts' Technical & Trade School, Inc.

• Decision Date: 03 April 1975
• Citation: 47 A.D.2d 306,366 N.Y.S.2d 129
• Parties: Robert GARONE and Joseph Garone, Plaintiffs-Appellants, v. ROBERTS' TECHNICAL AND TRADE SCHOOL, INC., Defendant-Respondent-Appellant, andLeonard Buder et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 129

366 N.Y.S.2d 129

47 A.D.2d 306

Robert GARONE and Joseph Garone, Plaintiffs-Appellants, v. ROBERTS' TECHNICAL AND TRADE SCHOOL, INC.,

Defendant-Respondent-Appellant, andLeonard Buder

et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

April 3, 1975.

Morris Zweibel, New York City, of counsel (Leon Segan, New York City, with him on the brief; Segan, Culhane, Nemerov & Geen, P.C., New York City, attorneys) for plaintiffs-appellants.

William F. McNulty, New York City, of counsel (Anthony J. McNulty, New York City, with him on the brief; Daniel J. Coughlin, New York City, attorney) for defendant-respondent-appellant Roberts' Technical and Trade School, Inc.

Alexander M. Selkirk, Jr., North Haven, of counsel (Furey & Mooney, Hempstead, attorneys) for defendant-respondent The Presbyterian Hospital.

James Borden Rosenblum, New York City, of counsel (Martin, Clearwater & Bell, New York City, attorneys) for defendant-respondent George R. Merriam, Jr.

Norman Bard, Brooklyn, of counsel (McAloon, Friedman, Schiavetti, Malang & Carroll, New York City, attorneys) for defendants-respondents Leonard Buder and Joseph Dubinsky, as co-executors of the estate of Alexander Julius Dubinsky, decedent.

Before STEVENS, P.J., and MURPHY, LUPIANO, CAPOZZOLI and LANE, JJ.

CAPOZZOLI, Justice:

An examination of this record convinces us that the action against the defendant, Dr. George R. Merriam, Jr., should not have been dismissed by the Trial Court at the close of the entire case. A factual issue was presented as to whether this defendant was responsible in damages for his failure to obtain an informed consent for the operation.

'* * * It is axiomatic that where there is a conflict in the evidence as to the issues controverted, matters of credibility and weight are for the jury to determine * * *'. (Kelly v. Watson Elevator Company, 309 N.Y. 49, 51, 127 N.E.2d 802, 803.

The dismissal by the Court was error.

The plaintiff, Robert, who was 17 years of age when he became a patient of the defendant, Dr. Merriam, testified that, prior to the surgery, he was able to see through the left eye, stating specifically:-- 'I seemed to have like blurred vision and a hair-type thing was floating in front of my eye', (R. 204)

but he could see. (R. 211) That, when the bandages were removed at Dr. Merriam's office two or three weeks after the operation, he could not see at all through the left eye. (R. 214) He told Dr. Merriam about this and the latter informed him that it would take a while for his sight to come back. However, he never had sight in this eye again and the eye was removed in a subsequent operation by a different doctor. Everyone agrees that the subsequent removal of the eye was necessary and proper.

Robert testified that, before the operation, Dr. Merriam told him that he would first attempt to take the foreign body out with a magnet and, if that did not work, he would use tweezers. (R. 302--03) Nothing was said to him at any time as to any dangers being involved in the procedure.

The plaintiff's mother, Anna Garone, testified that Dr. Merriam told her that the plaintiff needed an operation for the removal of the foreign body. He also stated that he had performed this operation many times and that the plaintiff would be a new boy after it. He said nothing to her as to any danger in the operation or that he could lose the sight of the eye as a risk of same. (R. 375--6)

Plaintiff's father, Joseph Garone, testified that he was never told by Dr. Merriam, nor anyone else, that there was any danger in the surgery to be performed. Nor was he told there was a possibility that Robert would go blind or lose his eye. (R. 442--46) Dr. Merriam said that Robert would be a new man after the operation.

'Although the liability of a physician for injuries suffered by his patient is ordinarily based on the failure of the physician to exercise the required skill and care under the prevailing circumstances and in the particular situation, a physician may be held answerable * * * where he fails to inform the patient of the risks of a particular treatment so that the latter can decide whether he is willing to undergo the treatment.

It is not enough for a physician merely to obtain consent before proceeding with treatment. He must obtain informed consent--that is, he is under an affirmative duty to make a reasonable disclosure to his patient of the known dangers which are incident to or possible in the proposed treatment; if he fails in that duty, he can be liable for malpractice even where the treatment is properly performed, if it injures the patient.' (45 N.Y.Jur., Physicians and Surgeons, § 161, p. 423.)

Also see: Scott v. Kaye, etc., 24 A.D.2d 890, 264 N.Y.S.2d 752, which held that an operation performed without an informed consent is an unauthorized operation and, further, fact issues as to whether a defendant performed an unauthorized operation, in that he failed to previously inform the plaintiff about the nature thereof and of the risks attendant thereon, were for the jury's determination.

In the case of Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296, in sustaining a verdict for the plaintiff against a doctor, and not against a hospital which was a codefendant, the Court said, at p. 415, 208 N.Y.S.2d at p. 378, 227 N.E.2d at p. 300:--

'* * * The surgeon's responsibility stemmed from his failure to obtain an informed consent from the boy's parents, * * *.'

The Court quoted, with approval, language of a case decided in the State of California, Salgo v. Leland Stanford, Jr., etc., 154 Cal.App.2d 560, 317 P.2d 710, 280 N.Y.S.2d at p. 379, 227 N.E.2d at p. 300 and at p. 416 of the Fiorentino opinion, the Court said:--

'In the Salgo case * * * the court noted that '(T)he physician must place the welfare of his patient above all else and this very fact places him in a position in which he sometimes must choose between two alternative courses of action. One is to explain to the patient every risk attendant upon any surgical procedure or operation, no matter how remote; * * *. The other is to recognize that each patient presents a separate problem * * * and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent.' * * *'.

and then went on to state that, on the evidence in the case before it, the jury was entitled to find that the surgeon had never explained sufficiently to the mother the hazards of the operation.

In Darrah v. Kite, 32 A.D.2d 208, 301 N.Y.S.2d 286 in discussing the case of Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92, where there was no consent whatever to an operation, at pp. 210--211, 301 N.Y.S.2d at p. 290 the Court said:--

'* * * Although the decision in Schloendorff was directed at a situation in which absolutely no consent had been obtained we are of the opinion that the rule is equally applicable to a situation where one has been given insufficient information upon which to formulate an intelligent consent. An uninformed or invalid consent is tantamount to no consent at all. (citing cases) An operation performed without an informed consent has been characterized as an 'unauthorized operation'.'

The Court then went on the conclude that the question of fact as to whether there had been an informed consent was for the jury to decide. Also see: DiRosse, et al. v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623.

In Moore v. London, 29 A.D.2d 666, 286 N.Y.S.2d 319, in passing upon the claim of a plaintiff based upon an unauthorized operation, the Court said:-- '* * * In our opinion, whether the paper signed by plaintiff constituted a valid consent to defendant's operation and treatment procedure, under the facts and circumstances here proved, constituted a question of fact for the jury. It was for the jury to determine whether an emergency situation occurred or was present which justified or excused defendant's actions in performing a hysterectomy and Caesarian section when engaged for delivery of a child.'

The case of Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, a decision of the U.S. Court of Appeals, District of Columbia, discussed at length the subject of lack of an informed consent and the consequences thereof. At pp. 780--81--83 of the Court's opinion, there is the following:--

'* * * True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.

A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and thereby is not the full measure of his responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. * * *

* * * And it is evident that it is normally impossible to obtain a consent worthy of name unless the physician first elucidates the options and the perils for the patient's edification. Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient.'

The question has been frequently raised as to whether the duty of the doctor to disclose relevant facts to his patient must be established by expert medical testimony, and, in this connection, it must be noted that there are conflicting decisions in the various jurisdictions which have considered the subject. Some require expert medical testimony. Others...