Lipsius v. White

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before TITONE; BOYERS; TITONE, J.P., and MANGANO and WEINSTEIN, JJ., concur in the opinion of BOYERS
• Citation: Lipsius v. White, 91 A.D.2d 271, 458 N.Y.S.2d 928 (N.Y. App. Div. 1983)
• Decision Date: 24 January 1983
• Parties: Ruth LIPSIUS et al., Appellants, v. A. Burton WHITE, Respondent.

Page 928

458 N.Y.S.2d 928

91 A.D.2d 271

Ruth LIPSIUS et al., Appellants, v. A. Burton WHITE, Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 24, 1983.

Milton S. Teicher, New York City, for appellants.

Leahey & Johnson, P.C., New York City (Peter James Johnson and Michael Conforti, New York City, of counsel), for respondent.

Before TITONE, J. P., and MANGANO, WEINSTEIN and BOYERS, JJ.

BOYERS, Justice.

This is an action to recover damages for personal injuries based upon the alleged medical malpractice of the defendant physician, Dr. White, who in August, 1976 operated upon plaintiff Ruth Lipsius' right hand to relieve her of symptoms which he had diagnosed as evidencing carpal tunnel syndrome, a pathological process defined by Dr. White at trial as compression symptoms on the median nerve. ¹ As a result, Mrs. Lipsius claims that the use of her right hand is permanently impaired.

In February, 1977 plaintiffs commenced the instant action, the complaint alleging three causes of action. By the first cause of action, as amplified by their bill of particulars, the plaintiffs sought recovery based upon allegations, inter alia, that (1) the surgery undertaken by Dr. White was unnecessary, and (2) in performing the operation, Dr. White negligently damaged and severed the palmar cutaneous branch of the median nerve of Mrs. Lipsius' right hand. Further, plaintiffs claimed that Dr. White failed to order proper and adequate diagnostic tests to determine the true etiology of the presenting symptoms, including electromyogram and nerve conduction tests, particularly in light of the results of earlier tests which tended to reject Dr. White's diagnosis of carpal tunnel syndrome. Plaintiffs' second cause of action was predicated upon the theory of lack of informed consent, and in a third cause of action plaintiffs sought damages for Mr. Lipsius' loss of services, etc.

At trial, Dr. White testified that he first saw Mrs. Lipsius with respect to her hand on December 17, 1973, his medical record reflecting the following entry for that day:

"About six weeks ago started to get burning in the right hand, severe burning and numbness in the fingers. She went to Dr. M. Green, who thought it was a cervical thoracic syndrome. EMG and cervical spine x-rays were negative. Was advised [by Dr. Green] she had a thoracic outlet syndrome and should have the first rib removed."

Dr. White agreed that carpal tunnel syndrome and thoracic outlet syndrome could produce similar symptoms. Additionally, tests conducted in December, 1973 by a Dr. Post, who performs electromyography and electroconduction studies, led that physician to the clinical impression that the etiology of Mrs. Lipsius' problem was scalenus syndrome and not carpal tunnel syndrome, the former condition being described by Dr. White as "thought to be a compression of the blood vessels that course underneath the * * * scalenus anticus muscle * * * a neck muscle that attaches to the clavicle". Dr. White explained that scalenus syndrome could produce symptoms similar to those present by both thoracic outlet syndrome and carpal tunnel syndrome.

Dr. Howard Balensweig, a board certified orthopedist, called on plaintiffs' behalf, testified as to accepted standards of medical practice thus:

"Q * * * Doctor, do you have an opinion, with respect to what is good medical practice, as to what tests should be performed by a physician, before operating on a patient for carpal tunnel syndrome?

"A I do.

* * *

* * * "Q 1976, what was good and accepted medical practice at that time, with respect to this type of surgery?

"A To order nerve conduction and electromyographic studies of both upper extremities, prior to surgery, in order to establish the diagnosis of carpal tunnel syndrome and also to judge the severity of it.

* * *

* * *

"Q Can you state, with reasonable medical certainty, whether or not it was good and accepted medical practice for Dr. White to have operated on Mrs. Lipsius, on August 2, 1976, for carpal tunnel syndrome without having taken a nerve conduction test and an EMG?

* * *

* * *

"A It is [sic ] improper to operate without having these tests done, at that time, in '76.

"Q And is it improper, today, also?

"A It is."

Dr. Balensweig agreed that Dr. Post's December, 1973 study indicated no median nerve entrapment. It is never possible, the witness stated, for carpal tunnel syndrome to be present when there is a negative nerve conduction test. Based upon this expert's reading of the pre-operative hospital record, he concluded, with a reasonable degree of medical certainty, that Mrs. Lipsius was not suffering from carpal tunnel syndrome at the time she was admitted to the hospital for the surgery in question.

With respect to the theory that Dr. White had severed the palmar cutaneous branch of the median nerve, Dr. Balensweig opined, with a reasonable degree of medical certainty, that the symptoms exhibited post-operatively resulted from the partial or complete division of that nerve rather than its entrapment by scar tissue.

Pursuant to subdivision 8 of section 148-a of the Judiciary Law, plaintiffs introduced into evidence at trial the formal written recommendation of the medical malpractice mediation panel. The panel, which was composed of a board certified orthopedic surgeon, a justice of the Supreme Court and an attorney, had rendered a unanimous recommendation that there was liability on the part of the defendant physician for medical malpractice, but did not indicate the specific basis for such finding. While the recommendation was supportive of plaintiffs' position, those panel members permitted by statute ² to testify were not called, either by plaintiffs in support, or by defendant in an attempt to diminish the negative effect of the recommendation.

The trial testimony of Dr. J. William Fielding, a board certified orthopedic surgeon, called in defendant's behalf, controverted that of plaintiffs' expert, both as to the proper pre-operative diagnosis and as to the manner in which the operation was executed. It was Dr. Fielding's conclusion that Dr. White had in all respects followed good and accepted medical practice. Moreover, based upon this expert's review of the medical records, defense counsel elicited testimony regarding a fall Mrs. Lipsius had sustained about a year after undergoing the surgery at issue, which incident had resulted in her hospitalization. X-ray films taken at that time demonstrated, inter alia, a fracture of the navicular (or scaphoid) bone in Mrs. Lipsius's right wrist. It was Dr. Fielding's opinion that symptoms referable to such an injury are similar to those of carpal tunnel syndrome and that sequelae of the former were sufficient to constitute the competent producing cause of the injuries complained of. Based upon the afore-mentioned, it was defendant's position at trial, inter alia, that plaintiffs had failed to adduce expert medical testimony sufficient to establish a causal nexus between the alleged malpractice and Mrs. Lipsius' alleged injuries.

Relevant to Mrs. Lipsius' claim founded upon the doctrine of lack of informed consent was her trial testimony concerning a visit she made to Dr. White's office on June 8, 1976, at which time she complained of "tingling" in her hand and Dr. White proposed surgical intervention. The record reads thus:

"Q * * * [W]hen you told * * * the doctor [about her current complaint] what did he say?

"A He said it was ridiculous for me to continue going on this way. And that he felt, that I should have surgery and get rid of this condition once and for all.

"Q What did you say?

* * *

* * *

"A I told him, I did not like the idea of surgery; could we do something else. I asked about medication * * * anything except surgery * * * I was using my hand. I was not troubled with it. It did not incapacitate me and I just did not want to go through surgery unless it was necessary. And I didn't know why it was necessary, if I had no problems for at least a year and a half before this.

"Q All right. What did the doctor say to you?

"A [He] said, that it was going to get much worse and that soon, no one wil be able to help me; it will be irreversible and that I was very foolish. And it is a very simple operation. And I would be working in two or three weeks and not to worry about it * * * I asked him, again, could we try medication or maybe another injection like I had gotten a year and a half before * * * he said, no. He would not give me another injection in the wrist. And if I did not want to go through with the surgery, if I did not make an appointment for the surgery that day, not to come back to him as a patient because that was what he felt I needed and he did not want to discuss it."

As to whether Mrs. Lipsius would have undergone the surgery complained of had she been fully informed, the following was asked of her and answered:

"Q * * * If you had known, prior to the surgery, that you were going to have the problems with your hand post-operatively, would you have consented to the surgery?

"A No sir."

In support of the alleged qualitative insufficiency of the consent to surgery (see, generally, CPLR 4401-a ³), Dr. Balensweig testified that it was good and accepted medical practice to inform a patient what risks, if any, are associated with surgery for carpal tunnel syndrome, including the known risk of "[d]amage to the cutaneous branch of the median nerve to the base of the palm, [d]amage to the median nerve and, additionally, [the] chance that the patient may or may not be improved by the surgery " (emphasis supplied).

Prior to summation, at the close of all the evidence in the case, the trial court granted defendant's motion to dismiss the complaint, based (it would appear from the transcript) upon plaintiffs' failure to establish a prima facie case.

For the reasons delineated hereinafter, we cannot agree that the trial court properly dismissed the complaint,...