Hegger v. Green

• Decision Date: 13 May 1981
• Docket Number: D,Nos. 12,49,s. 12
• Citation: 646 F.2d 22
• Parties: Hilda HEGGER, Executrix of the Estate of Fred P. Hegger, Plaintiff-Appellee- Appellant, v. George E. GREEN, Defendant-Appellee, and St. Luke's Hospital Center, Defendant-Appellant-Appellee. ockets 80-7146, 80-7170.
• Court: U.S. Court of Appeals — Second Circuit

Page 22

646 F.2d 22

Hilda HEGGER, Executrix of the Estate of Fred P. Hegger Plaintiff-Appellee- Appellant, v. George E. GREEN, Defendant-Appellee and St. Luke's Hospital Center, Defendant-Appellant-Appellee.

Nos. 12, 49, Dockets 80-7146, 80-7170.

United States Court of Appeals, Second Circuit.

Argued Oct. 16, 1980.

Decided March 12, 1981.

Rehearing and Rehearing In Banc Denied May 13, 1981.

Paul D. Rheingold, New York City, for plaintiff-appellant.

Roger P. McTiernan, New York City (Michael F. Close, Barry McTiernan & Moore, New York City, of counsel), for defendant-appellant-appellee St. Luke's Hospital Center.

Sidney A. Florea, New York City (Ferziger, Wohl, Finkelstein & Rothman, New York City, of counsel), for defendant-appellee George E. Green.

Before FRIENDLY, MANSFIELD and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

The plaintiff Hilda Hegger, executrix for the estate of her deceased husband, Fred Hegger, brought this diversity-based medical malpractice action against the defendants Dr. Green and St. Luke's Hospital Center (St. Luke's), claiming that their negligence caused the wrongful death of her husband. The jury found that both defendants had been negligent and that the decedent had been contributorily negligent. In response to special interrogatories, the jury computed the total damages due the plaintiff, deducted a percentage for the decedent's contributory negligence, and apportioned the net damages between the two defendants. St. Luke's appeals, claiming that certain damages were improperly awarded and that, in any event, there was insufficient evidence to support a finding of negligence against it. The plaintiff appeals that portion of the judgment imposing a deduction for the contributory negligence of the decedent. Dr. Green did not appeal. For the reasons stated below, we reverse the judgment against St. Luke's, reverse the deduction for contributory negligence, and modify the remaining judgment to align it with New York precedents governing the recoverability of loss of consortium in wrongful death actions.

BACKGROUND

Fred Hegger, a 52-year-old plant manager of a cloth finishing company, collapsed on the job on October 6, 1976, and was rushed to Hackensack Hospital in New Jersey. There, various test results ¹ showed that two major coronary arteries were seriously occluded. On the basis of these tests, Dr. Goodman, Hegger's attending cardiologist at Hackensack, concluded that Hegger should undergo coronary bypass surgery. Therefore, after a consultation with the patient, one of the Hackensack doctors contacted Dr. George Green, a well-known cardiac surgeon, to inquire whether he would accept Hegger as a candidate for cardiac surgery. After taking Hegger's history over the telephone, Dr. Green agreed, and arrangements were made for the transfer of the patient to St. Luke's Hospital Center, where Dr. Green performed nearly all of his surgery.

During his hospitalization at Hackensack, Hegger's activities were quite restricted and his condition closely watched. For the first five days, he stayed in the coronary care unit (CCU), where he was confined to bed and attached to monitoring equipment. When his condition seemed to stablize, he was transferred to the regular floor, but had to return to the CCU the following day when he developed severe chest pain and an On Friday, October 29th, Hegger was transferred by ambulance to St. Luke's. The evidence was conflicting as to when surgery was first scheduled. The plaintiff claims that surgery was planned for November 1st, but was inexplicably and unjustifiably postponed. Dr. Green claimed that the first surgery date was November 10th. In any event, the surgery was not performed and Hegger died of heart failure in the early morning hours of November 4th.

                extremely low heartrate.  2 About a week later, on the 21st, he was again transferred to the regular floor, but electronic monitoring continued 3 and his activities remained restricted.  Throughout his stay at Hackensack he was explicitly forbidden to smoke
                

During his stay at St. Luke's, Hegger was allowed more freedom and was subjected to less scrutiny than he received at Hackensack Hospital. He was neither placed in a CCU nor attached to any monitoring equipment. He was allowed to walk around, and would meet with his family in the solarium on his floor. On one occasion, he walked up, and later down, a flight of stairs leading to the solarium on the floor above his. Finally, there were no written orders in Hegger's chart prohibiting smoking, although Dr. Green testified that he had "standing orders" to this effect for all his surgery patients. Nevertheless, the evidence showed that Hegger smoked at least three cigarettes while he was at St. Luke's.

The plaintiff's case against Dr. Green proceeded on two theories. First, she claimed that her husband needed surgery at once and that Dr. Green's failure promptly to operate was malpractice. Second, she asserted that Dr. Green negligently failed to take proper steps regarding the observation and supervision of her husband, arguing that the doctor should have ordered electronic monitoring for her husband and should have entered specific orders restricting his activities and forbidding his smoking. ⁴

The case against St. Luke's was based on the hospital's failure to prevent the patient from roaming about, failure to carry out Dr. Green's "standing orders" prohibiting smoking, and failure to maintain adequate nursing observation. The plaintiff presented evidence that Hegger had smoked regularly at St. Luke's, and that on one occasion a hospital attendant had handed him an ashtray. Further, although no specific orders had been written, the plaintiff elicited testimony from Dr. Green that it was not customary for cardiac patients to leave the floor. Finally, the plaintiff produced evidence that Hegger was not attended between 1:00 a. m. and 6:30 a. m. on November 4th, when he was found dead in bed. At the close of all the evidence, the plaintiff moved for a directed verdict removing the issue of contributory negligence from the jury, and both defendants moved for directed verdicts on the issue of liability, claiming no causation had been shown. The court denied these motions.

In response to special interrogatories, the jury found both defendants liable and awarded the plaintiff a total of $526,984. That award comprised $501,984 on the wrongful death claim (including $25,000 for loss of consortium and $25,000 for loss of parental services) and $25,000 on plaintiff's survival claim for the decedent's pain and suffering. From the total award, the jury deducted 27 percent for the contributory negligence of the decedent. The jury apportioned the remaining damages ($384,698) according to relative fault, finding Dr. Green 25 percent responsible and St. Luke's 75 percent responsible. Judge Motley, while confessing some surprise over the apportionment,

refused to grant either the plaintiff or the defendants a judgment notwithstanding the verdict, ruling that the jury's finding was not unreasonable as a matter of law. Judgment was entered and both the plaintiff and St. Luke's appeal.

DISCUSSION

A. The Hospital's Appeal

1. Damages

The hospital argues that the award of $25,000 for loss of consortium must be reversed in light of the intervening decision of the New York Court of Appeals in Liff v. Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980). We agree. At the time this case was tried, New York law was unsettled as to whether damages for loss of consortium could be recovered in a wrongful death action. Compare Ventura v. Consolidated Edison Co., 65 A.D.2d 352, 411 N.Y.S.2d 277 (1st Dep't 1978), rev'd, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) (allowing recovery) with Grant v. Guidotti, 66 A.D.2d 545, 555 n.10, 414 N.Y.S.2d 171 (2d Dep't 1979), aff'd, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) and Osborn v. Kelley, 61 A.D.2d 367, 402 N.Y.S.2d 463 (3d Dep't 1978) (forbidding recovery). The Court of Appeals has since settled the matter in Liff, supra, in an emphatic opinion which underscored the prerogative of the legislature to control the content of the statutorily created wrongful death action. The court held that the statute does not contemplate recovery for loss of consortium and that the "very existence of the statutory right" precludes the possibility of a separate common law cause of action for that loss. Liff v. Schildkrout, supra, 49 N.Y.2d at 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288.

It is well settled that on direct review an appellate court must apply the law in effect at the time it renders its decision, United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109-11, 2 L.Ed. 49 (1801); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281-82, 89 S.Ct. 518, 525-526, 21 L.Ed.2d 474 (1969), unless doing so would cause manifest injustice, ⁵ Bradley v. School Board of Richmond, 416 U.S. 696, 716, 94 S.Ct. 2006, 2018, 40 L.Ed.2d 476 (1974). The basis for the rule was first explained by Chief Judge Marshall, and remains the same today:

It is, in the general, true, that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt, in the present case, has been expressed, I know of no court which can contest its obligation.

United States v. Schooner Peggy, supra, 5 U.S. at 110, 2 L.Ed. 49. Since a federal court sitting in diversity must apply the governing state law, see Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must abide by intervening decisions handed down by New York's highest court. See Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct....