Koehler v. Schwartz

• Decision Date: 20 February 1979
• Citation: 413 N.Y.S.2d 462,67 A.D.2d 963
• Parties: Mary P. KOEHLER et al., Respondents, v. Peter SCHWARTZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 462

413 N.Y.S.2d 462

67 A.D.2d 963

Mary P. KOEHLER et al., Respondents, v. Peter SCHWARTZ, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 20, 1979.

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

Joseph Kelner, New York City (Monica Risi Merrill, New York City, on brief), for respondents.

Before TITONE, J. P., and SUOZZI, GULOTTA and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant appeals from a judgment of the Supreme Court, Nassau County, dated October 28, 1977, in favor of plaintiffs, upon a jury verdict.

Judgment reversed, on the law, with costs, and complaint dismissed.

In May, 1972, defendant performed an abortion on plaintiff Mary P. Koehler (plaintiff) which failed, however, to terminate her pregnancy. She subsequently gave birth to an apparently healthy, normal baby girl. Prior to undergoing the abortion, plaintiff had had three operations for the removal of malignant growths. The abortion was recommended and consented to by plaintiff on the ground that hormonal changes during pregnancy could speed up and spread any melanoma remaining in her body. On the theory that defendant's performance of the abortion procedure (suction curettage) and delay in notifying her that the procedure had failed to accomplish its purpose had not been in accord with proper practice, and that such malpractice had caused plaintiff injury in the form of mental and emotional distress (traumatic psychoneurosis, with obsessive anxieties, cancerophobia and depression), the jury found in favor of the plaintiffs. The judgment must be reversed and the complaint dismissed.

Plaintiffs failed to establish by expert evidence that defendant had not performed the abortion in accordance with proper and accepted medical standards. They presented no expert medical testimony in their own behalf to counter the testimony of defendant's experts, as well as of defendant himself (called on plaintiffs' case), that the procedure was performed in accordance with proper and accepted practice. Although one might infer from the hospital record that defendant had failed to use a sharp curette in addition to a suction curette, despite his testimony that he always used both, one cannot go further and infer that the abortion would have been successfully completed had the sharp curette been used. Not only is this the type of case in which a jury of laymen is ill-equipped to determine the issue of negligence simply as an inference from the circumstances, thus rendering inapplicable the doctrine of Res ipsa loquitur (see Pipers v. Rosenow, 39 A.D.2d 240, 333 N.Y.S.2d 480), but all of the expert testimony adduced indicates that the use of the sharp curette is purely a matter of choice, being merely an alternative procedure. There can be a failure to terminate a pregnancy despite its use since this is a blind procedure in which care must be taken not to perforate the wall of the uterus or scar its lining. The procedure is allegedly even riskier where, as here, the uterus was retroverted.

Defendant was also found guilty of malpractice in failing to inform plaintiff prior to her regularly scheduled six-week visit, that the procedure had failed. Whatever the merits of this claim, it is clear that this delay cannot independently support an award of damages. It was not, in and of itself, a proximate cause of any of plaintiff's emotional and mental distress.

TITONE, J. P., and GULOTTA and MARTUSCELLO, JJ., concur.

SUOZZI, Justice, dissents and votes to affirm the judgment, with the following memorandum:

Plaintiffs' malpractice case against the defendant doctor was submitted to the jury on two theories of liability: (1) that defendant's performance of an abortion procedure (suction curettage), which failed to terminate plaintiff Mary P. Koehler's pregnancy, was not done in accordance with proper medical practice; and (2) that defendant's delay in notifying the plaintiffs of the procedure's failure was not in accord with proper medical practice. Plaintiffs alleged that defendant's malpractice caused the female plaintiff mental and emotional distress (traumatic psychoneurosis, with obsessive anxieties, cancerophobia and depression). The jury found for plaintiffs on both theories of liability alleged by them.

In reversing the judgment and dismissing the complaint the majority holds that (1) a prima facie case of negligence was not made out by plaintiffs on the first theory of liability due to their failure to produce any competent expert testimony that the abortion procedure was not done in accordance with proper and accepted medical practice, and (2) whatever the merits of plaintiffs' claim that defendant was guilty of malpractice in failing to advise them of the failure of the procedure for a period of six weeks, any malpractice in this regard was not a proximate cause of any of the female plaintiff's emotional and mental distress.

I disagree.

In my view, plaintiffs produced sufficient medical evidence to justify the submission of both theories to the jury and the latter's verdict in favor of plaintiffs should not be disturbed.

With regard to the first theory of liability, the defendant doctor admitted that he always used a suction tube and a sharp curette since he considered both useful in evacuating all of the...