McDermott v. Manhattan Eye, Ear and Throat Hospital

• Decision Date: 25 November 1964
• Citation: 15 N.Y.2d 20,203 N.E. 2d 469,255 N.Y.S.2d 65
• Parties: , 203 N.E.2d 469 Kathleen McDERMOTT, Appellant, v. MANHATTAN EYE, EAR & THROAT HOSPITAL et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 65

255 N.Y.S.2d 65

15 N.Y.2d 20, 203 N.E.2d 469

Kathleen McDERMOTT, Appellant, v. MANHATTAN EYE, EAR & THROAT HOSPITAL et al., Respondents.

Court of Appeals of New York.

Nov. 25, 1964.

Arthur C. Zale, Sidney Schwamm and Max Toberoff, New York City, for appellant.

Richard E. Shandell and Desmond T. Barry, New York City, for Walter S. Schachat, respondent.

James J. Finnerty, Jr., New York City, for Townley Paton, respondent.

George S. Pickwick and George J. Conway, New York City, for Manhattan Eye, Ear & Throat Hospital and another, respondents.

FULD, Judge.

The only important question posed by this appeal, one of first impression in this State, concerns the right of a plaintiff in a malpractice suit to call a doctor against whom she brought the action and question him as a medical expert.

The plaintiff, Kathleen McDermott, was for many years aware that she was suffering in both eyes from some corneal disease and had, on a number of occasions, consulted with various physicians with reference to her condition and been advised of the possible merits of a corneal transplant. In August of 1957, she visited Dr. Schachat, an ophthalmologist, who examined her eyes and, in discussing such a transplant, allegedly stated that, even if the transplant was a complete failure, the plaintiff's left eye would be '(e)xactly the way it is now' and, thus, she 'had everything to gain and positively nothing to lose' by undergoing such an operation. Dr. Schachat, however, informed the plaintiff that he did not specialize in corneal transplants and he referred her to Dr. Paton, the physician in charge of the corneal clinic at the Manhattan Eye, Ear and Throat Hospital and, admittedly, one of the leading ophthalmologists in the world.

The plaintiff was examined by Dr. Paton on October 3, 1957, and, according to her testimony, he apparently told her that, without an operation, she was 'going to lose (her) sight'. Dr. Paton, called as a witness by the plaintiff, testified that he diagnosed the condition of the plaintiff's eyes as 'Fuch's dystrophy' a rare ailment marked by progressive clouding of the cornea that the disease 'extended pretty well to the periphery' of the cornea in each eye and that the plaintiff's vision without glasses was 5/200 in each eye, her best corrected vision being 20/200. He recommended a 'curettement of the endothelium' which is a scraping of the back layer of the cornea to be followed by a corneal transplant, both operations to be performed, in the first instance, on the plaintiff's left, and worse, eye. About three weeks later, on October 22, the plaintiff entered Manhattan Eye, Ear and Throat for the express purpose of undergoing the recommended operations and, at such time, signed the standard admittance forms, which contained an authorization to operate. At the hospital, the plaintiff was visited, for the first time, by Dr. Kleinhandler who, declared the plaintiff, stated 'Positively, you cannot lose your sight in this operation' and assured her, so she further testified, that, 'If the operation wasn't a success, I would be just the way I was with my eye and vision and go about my business'. On the following day, October 23, Dr. Kleinhandler performed the first stage of the operation, the curettement of the endothelium, with Dr. Paton in attendance and supervising. Thereafter, the second step, the actual corneal transplant in the left eye, was carried out by Kleinhandler, this time with Dr. Doctor supervising. And, finally, a third operation, to alleviate a secondary glaucoma, was performed by Dr. Paton himself. There is no dispute but that the operations were unsuccessful and the plaintiff rendered virtually blind in her left eye. At the same time, Dr. Paton's testimony indicated that, contrary to any dire predictions, the plaintiff's right eye, upon which no surgery was performed, showed a natural, marked improvement in visual acuity.

The plaintiff thereupon brought this action against the several doctors and the hospital, basing her case of malpractice upon two theories: first, that the defendants Schachat and Kleinhandler had knowingly made misrepresentations as to the possible outcome of the operation which induced her to submit to the surgery to her injury and, second, that the defendants Paton, Doctor and Kleinhandler had recommended and performed the surgery when, in light of the condition of her left eye, such surgery was contraindicated by accepted medical practice. ¹ The trial court dismissed the complaint against all the defendants at the conclusion of the plaintiff's case. On appeal, the Appellate Division affirmed that dismissal as to two doctors, Dr. Schachat and Dr. Doctor, and modified as to the other two, Drs. Paton and Kleinhandler, as well as the defendant hospital which employed Kleinhandler as a resident doctor, by providing that the dismissal as to them should be 'without prejudice' (16 A.D.2d 374, 380, 228 N.Y.S.2d 149). ²

As to the first of the plaintiff's two theories, we agree with the Appellate Division's conclusion and content ourselves with its statement that 'on this record it appears the plaintiff did not rely' on the alleged misrepresentations of Dr. Schachat or Dr. Kleinhandler in deciding to undergo the corneal transplant (16 A.D.2d, at pp. 376-377, 228 N.Y.S.2d at pp. 145-147). Accordingly, we here limit our attention to the plaintiff's action against Dr. Paton, Dr. Kleinhandler and the hospital, based on her second theory of malpractice. ³

It is not Miss McDermott's plaint that the operations were in any respect negligently performed but, rather, that the two-step surgical procedure the scraping and the actual transplant should never have been recommended or undertaken. It is her theory that standard medical practice establishes that a corneal transplant is never indicated where, as the defendants knew to be the case here, the disease of Fuch's dystrophy extends to the periphery of the cornea and the patient's uncorrected eye-sight is less than 20/200. In such a case, the plaintiff asserts, the disease in the corneal periphery will invade the graft and 'doom' the operation to failure.

Since the issue whether the defendants Paton and Kleinhandler properly recommended and undertook to perform a corneal transplant is, quite obviously, not one within the realm of competence of a lay jury, it was incumbent upon the plaintiff to come forward with expert medical testimony to support her allegations of malpractice. (See, e. g., Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367, 370; Benson v. Dean, 232 N.Y. 52, 56, 133 N.E. 125, 126; Robbins v. Nathan, 189 App.Div. 827, 830, 179 N.Y.S. 281, 283; see, also, 7 Wigmore, Evidence (3d ed.), § 2090; Ann. 81 A.L.R.2d 597.) At the trial, the plaintiff testified on her own behalf and called but two other witnesses, the defendants Dr. Paton and Dr. Kleinhandler. She did not call an expert witness of her own nor did she introduce any other medical proof to establish her claim of malpractice. Instead, the plaintiff, after eliciting responses from Dr. Paton as to his examination, diagnosis and treatment in her case and after establishing that he had written a book on the subject of corneal transplants ('Keratoplasty'), sought to further question him and, later, Dr. Kleinhandler as to (1) the general background and risks of such operations; (2) the favorable conditions which, typically, must be present in a patient's diseased eyes before transplanting is deemed suitable; and (3) the usual significance of a diagnosis of Fuch's dystrophy extending to the periphery of the cornea and uncorrected vision of less than 20/200 on a patient's chances for a successful transplant. In short, the plaintiff attempted to prove her malpractice case by questioning the defendants, Paton and Kleinhandler, as to the established medical practice in the field of keratoplasty and their knowledge of it.

The trial court, by sustaining objections to all such questions and, later, rejecting her offer of proof, prevented the plaintiff from eliciting such expert opinion evidence from the two defendants. ⁴ As a result the plaintiff's case was barren of expert testimony tending to establish a deviation by the defendants from proper and approved medical practice and the trial court had no choice, at that point, but to dismiss her complaint. The Appellate Division agreed that the plaintiff had placed 'mistaken reliance upon the expertise' of the defendants and, as previously noted, modified the judgment of the trial court solely in light of 'the possibility that the plaintiff may be able to supply the necessary expert medical evidence' in a new action (16 A.D.2d, at pp. 379-380, 228 N.Y.S.2d at p. 149).

The only question of substance upon this appeal, then, is whether the plaintiff should have been given the opportunity of establishing her claim of malpractice by showing, through the testimony of the defendant doctors, that proper medical practice contraindicated the performance of a corneal transplant on a patient such as the plaintiff.

It has long been recognized in this State that a party in a civil suit may be called as a witness by his adversary and, as a general proposition, questioned as to matters relevant to the issues in dispute. (CPLR 4501, 4512; see, also, 8 Wigmore, Evidence (McNaughton's rev., 1961), § 2218; Richardson, Evidence (9th ed.), § 523.) Statutes in virtually every other jurisdiction reflect such a rule insofar as they provide, for example, that a party may call his adversary for interrogation 'as if under cross-examination' (e. g., Cal.Code Civ.Pro., § 2055; Ill.Rev.Stat., ch. 110, § 60; Md.Ann.Code, art. 35, § 9; Fed.Rules Civ.Pro., rule 43, subd. (b)) or that such adverse party may be compelled to testify 'in the same manner and subject to the same rules as other witnesses' (e. g., Kan.Gen.Stat., 1949, 60-2803; N.J.Rev.Stat., § 2:97-12 ^*). Modern rules of evidence have thus removed the...