Gayle v. Neyman

• Decision Date: 06 January 1983
• Citation: 91 A.D.2d 75,457 N.Y.S.2d 499
• Parties: Lorna GAYLE and Michael Gayle, Plaintiffs-Appellants, v. Daniel NEYMAN, M.D., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 499

457 N.Y.S.2d 499

91 A.D.2d 75

Lorna GAYLE and Michael Gayle, Plaintiffs-Appellants, v. Daniel NEYMAN, M.D., Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Jan. 6, 1983.

Norman H. Dachs, Mineola, of counsel (Shayne, Dachs & Stanisci, Mineola, attorneys), for plaintiffs-appellants.

John L.A. Lyddane, New York City, of counsel (William W. Haury, Jr., New York City, with him on the brief; Martin, Clearwater & Bell, New York City, attorneys), for defendant-respondent.

Before SANDLER, J.P., and MARKEWICH, BLOOM, FEIN and MILONAS, JJ.

FEIN, Justice.

Plaintiff Lorna Gayle brought this action for malpractice against defendant physician who examined and treated her in 1974, alleging that his failure to perform a pelvic examination and make a proper diagnosis of her condition at that time caused her to have to undergo a hysterectomy two years later and to be unable to bear children. Lorna's husband, Michael, sued for loss of services.

Lorna had consulted defendant, an internist, for some six years before the events pertinent to this appeal. In March 1974 she telephoned defendant, as she had done on a number of occasions, complaining of heavy menstrual bleeding. Defendant prescribed over the telephone the female hormone Provera in tablet form for five days. The bleeding stopped three days later, indicating that its cause was functional rather than organic. No office visit or examination was scheduled. Two months later an incident at work caused Lorna to become faint from emotional strain, and she rushed to defendant's office, exhibiting a "racing" heart and shortness of breath. Defendant gave her a general examination and ordered blood tests and a cardiogram. Suspecting thyroid complications, defendant conducted no internal pelvic examination. He thought it was unnecessary and might traumatize his patient. Besides, Lorna had voiced no gynecological complaints. These were the two consultations complained of as alleged malpractice. Plaintiffs alleged that good and accepted medical practice called for a pelvic examination which was not done at that time.

Four months later, in early October 1974, Lorna visited defendant, complaining of weakness and tired condition. Although Lorna displayed no gynecological symptoms, defendant performed a pelvic examination, not having done so in the past year and a half. Finding abnormal swelling, defendant referred Lorna to a gynecologist (Dr. Tanz), who determined through radiological testing that Lorna had two fibroid tumors in her uterus. Tanz treated Lorna through January 1975, reporting to defendant that he favored a conservative approach because growth of these benign tumors had "plateaued", because they were not causing any significant problems, and because myomectomy (surgical removal of the fibroids) would be risky due to their location.

Over the next three months Lorna consulted another gynecologist, Dr. Fenton, complaining of increased backache and heavy menstrual bleeding. Because the tumors now appeared to be growing again, Fenton operated in April 1975, performing a dilation and curettage, a myomectomy, a partial left oophorectomy (removal of a part of the left ovary), and removal of some endometriosis. It was during the course of this operation that it was discovered for the first time that Lorna had endometriosis. All of the medical testimony was consistent, to wit, that the existence of endometriosis generally can be discovered only through surgical exploration.

More than eight months later Lorna, again suffering from heavy menstrual periods, consulted still another gynecologist, Dr. Hausknecht, who examined her and concluded that fibroid tumors had recurred. When a prescription of Provera (which he described as "a very, very safe drug" which "does not stimulate the growth of uterine fibroids") failed to check the bleeding, Hausknecht performed a dilation and curettage in February 1976 which seemed to confirm the recurrence of a fibroid mass. Hausknecht told Lorna that surgery was not presently indicated, but would eventually be necessary because of growth of the tumor and its encroachment on other organs. In April 1976 Dr. Novak operated on Lorna and observed extensive endometriosis, necessitating a total hysterectomy, including the removal of Lorna's otherwise healthy ovaries. Post-surgical pathological examination also revealed evidence of adenomyosis, a disease necessitating surgical removal via hysterectomy, required irrespective of whether fibroid tumors existed.

The jury returned a verdict of $250,000 for Lorna and $50,000 for her husband, evidently concluding that defendant's failure to conduct a pelvic examination during the first two incidents in 1974 was the proximate cause of the hysterectomy two years later. Defendant's motion to set the verdict aside as excessive and as contrary to the weight of the credible evidence was granted upon the ground that the verdict was "contrary to the evidence presented".

There should be an affirmance. The trial court had the authority to direct judgment in favor of the defendant. CPLR 4401 provides, in pertinent part:

"Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue".

CPLR 4404(a) provides, in pertinent part:

"After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence".

Although the trial judge used the phrase "weight of the evidence", it is plain that the judge was ruling "that plaintiff has failed in the proof required to support a claim of malpractice", an analysis consistent with entering judgment "in favor of a party entitled to judgment as a matter of law" (CPLR 4404). Where a jury verdict is set aside as contrary to the weight of the evidence, a new trial is the appropriate...