McGrath v. Irving
| Decision Date | 20 December 1965 |
| Parties | Evelyn McGRATH, Respondent, v. Chester IRVING, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John F. Kelly, Cohoes, for plaintiff-respondent.
Francis E. Lehner, Delmar (Karl H. Schrade, Delmar, of counsel), for defendant-appellant.
Before GIBSON, P. J., and HERLIHY, REYNOLDS, AULISI and HAMM, JJ.
The plaintiff on the evening of January 31, 1962 was a passenger in the automobile operated by the defendant. In attempting to make a left turn from Menands Road into Van Rensselaer Boulevard it collided with an automobile proceeding easterly on Menands Road. The plaintiff sued the owners of both vehicles but a settlement during trial was effected with the owner of the estbound car and the action proceeded to judgment against the defendant herein.
The question of the defendant's negligence was properly submitted to the jury and, as the court properly instructed the jury when it returned for further information, the degree of responsibility of the owners of the colliding automobiles is not the law in this State.
The plaintiff contends, inter alia, that she received an injury to her throat by striking the side of the car and swallowed glass which allegedly caused an epidermoid carcinoma of the larynx resulting eventually in a total laryngectomy.
At the trial doctor associated with the Chevalier Jackson Clinic, and the Department of Laryngology-bronchoesophagology at Temple University testified. He stated that the Clinic was engaged in the research and treatment of diseases of the larynx, tumors of the larynx, foreign bodies of the larynx and the tracheobronchial tree, and diseases of the bronchial tree, the lungs and the esophagus. He further testified that he was familiar with the history of the plaintiff's injury, the subsequent events and from his own observation, having performed the operation, in answer to a hypothetical question, he said: 'My opinion, the events, the accident, the inhalation of glass were a cause of accelerated development or growth of Mrs. McGrath's cancer.'
The defendant produced medical testimony that there was no causal relationship between the accident and the resulting carcinoma.
This, of course, presented a sharp medical issue of fact, but we find the resolution of the jury in favor of the plaintiff is supported by a preponderance of the evidence. It would be difficult to conceive a better qualified physician than the plaintiff's expert as to this particular phase of medicine. It is generally conceded by the medical profession that the origin and cause of cancer cells are unknown. It is likewise a fact that medicine is not an exact science but in the legalistic sense when a doctor in circumstances such as here expresses an opinion based upon a fair and accurate hypothetical question and establishes relationship between the accident and the injury, it is acceptable and the only reasonable basis on which to predicate the right to recover. It is for this reason that the courts have come to permit the injection of words such as 'possible' and 'probable' by the medical profession in expressing an opinion, providing, of course, there is a reasonable basis in fact for such a permit. (See Cunningham v. Maxwell, 6 A.D.2d 366, 176 N.Y.S.2d 720.)
It is not, however, the intent of the courts to permit rash speculation and surmise but here, considering the limited knowledge as to the cause of carcinoma, the medical qualifications of the plaintiff's expert were such as to entitle hime to give an opinion based upon the hypothetical question for the jury's consideration. The rule is generally recognized. (See Walters v. Smith, 222 Md. 62, 158 A.2d 619, 2 A.L.R.3d 482 [a neurological injury]; Baker v. DeRosa, 413 Pa. 164, 196 A.2d 387, 2 A.L.R.2d 376 [a cancer injury].)
Following the trial, the plaintiff moved pursuant to CPLR § 8303 for an additional allowance on the grounds of unusual and extraordinary medical proof and expense and also...
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