Meiselman v. Crown Heights Hosp., Inc.

• Decision Date: 24 April 1941
• Citation: 34 N.E.2d 367,285 N.Y. 389
• Parties: MEISELMAN v. CROWN HEIGHTS HOSPITAL, Inc., et al.
• Court: New York Court of Appeals Court of Appeals

285 N.Y. 389

34 N.E.2d 367

MEISELMAN

v.CROWN HEIGHTS HOSPITAL, Inc., et al.

Court of Appeals of New York.

April 24, 1941.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Milton Meiselman, by Fanny Meiselman, his guardian ad litem, against Crown Heights Hospital, Incorporated, and others, for negligence and malpractice and abandonment of plaintiff's case before he was cured. Judgment of the trial term dismissing the complaint was affirmed by the Appellate Division, 259 App.Div. 840, 20 N.Y.S.2d 174, and after an appeal was denied by the Appellate Division, 259 App.Div. 916, 20 N.Y.S.2d 669, plaintiff appealed pursuant to leave granted by the Court of Appeals.

Reversed and new trial granted.

CONWAY and LEWIS, JJ., dissenting in part.

Dora Aberlin, of New York City, for appellant.

Thomas H. Clearwater, of New York City, for respondents.

RIPPEY, Judge.

In the complaint plaintiff has set up four separate causes of action, three against the defendants individually and one against them jointly, for damages for personal injuries suffered by the plaintiff through negligence and malpractice which resulted in osteomyelitis and abandonment of his case before he was cured and while he was desperately ill and helpless. Plaintiff furnished a bill of particulars purporting to be in response to a demand that certain particulars of the allegations of the complaint be furnished. So far as it goes, among other things, it purports to contain certain particulars of the claims of plaintiff against the defendant Schoolnik of negligence and malpractice and against the defendant hospital and the defendant Koster of negligence and malpractice in treatment and against all of the defendants of a premature discharge of the patient and abandonment of the case. Since a demand for the bill is not in the record, it is impossible to say whether or not it places any limit on the pleadings. The course of the trial would seem to indicate that it did not. Before plaintiff was given an opportunity by the trial judge to complete his proofs, on motion of defendants the court dismissed the complaint on the merits. From a judgment making that dismissal effective, plaintiff appealed to the Appellate Division, where the judgment was affirmed. Upon the review in this court the facts must be viewed in the aspect most favorable to the plaintiff and every permissible inference from those facts in favor of plaintiff must be indulged. Kraus v. Birnbaum, 200 N.Y. 130, 133, 93 N.E. 474.

Among other things, the following facts briefly stated appeared in the record at the time the nonsuit was granted: The defendants Schoolnik and Koster were physicians licensed by the State of New York to practice their profession and the defendant hospital was a private institution operated for profit of which the defendant Koster was the chief of the surgical staff. The plaintiff, then a boy eight years of age, was kicked in the left knee by another boy in the latter part of November, 1931, and suffered an injury. Shortly afterwards the boy complained that his leg hurt and his father called a physician to attend him. The doctor diagnosed the trouble as a case of grippe and prescribed for his fever. The boy found no relief and the defendant Schoolnik was summoned to attend him. He examined the boy and stated that his situation was such that he was unable to treat him and suggested that the defendant Koster, a specialist, be called. Koster ordered immediate hospitalization and sent the boy to the defendant hospital. The boy was desperately ill and required a blood transfusion and Koster operated first on one leg and then on the other and encased both legs in plaster casts. The trouble was diagnosed by Koster as osteomyelitis, a pusforming infection of the bone. The boy was at the hospital for a period of about eighteen weeks and the hospital bill amounted to approximately a thousand dollars upon which the father of the boy had been unable to pay more than $349. Since the father was unable to pay the balance of the bill after various continuing demands on the part of the defendants Koster and the hospital, the defendants discharged the boy from further hospitalization, and the father took the boy home, although refusing at the time to deliver a release to the hospital authorities as demanded. At the time the boy went home he was not cured, he had casts on both legs and both legs had open wounds through which pus was draining through windows in the plaster casts and he still ran a high temperature. The father testified that the doctors told him that the boy did not need further hospitalization, that it was unnecessary to transfer him to a charitable hospital and that defendant Schoolnik would take care of the boy at home under Koster's supervision and that Koster told him, in substance, that Schoolnik had seen the dressings made through the windows in the casts and was competent to handle the case. The father demurred from removing the boy from the hospital but was assured by the doctor that it was proper to keep the boy at home and that he would be given proper care and attention. He said that Schoolnik explained to him that it would be necessary to put dressings on the wounds once in each five days or a week and that he would come in and do the dressings. The evidence is undisputed that Schoolnik had never had a case of the kind before and that during the subsequent five weeks during which the boy remained at home he failed on any occasion to consult the defendant Koster. The boy was suffering intense pain and was crying on occasions. Schoolnik attempted to remove parts of the casts on account of the increasingly bad condition of the legs and while doing so caused lacerations and when the father protested and asked him whether that was the way they handled things at the hospital Schoolnik replied that it was not but that nevertheless it amounted to nothing and that the legs would heal up. Schoolnik admitted at the outset, as above stated, that he knew nothing about a case of the kind, was unable to treat it and for that reason had called in the specialist. After the boy had been at home for some five weeks, at the request of Schoolnik he was sent to the Kings County Hospital on May 2, 1932. Between that time and October 17, 1936, the boy was hospitalized and treated alternately at the Kings County Hospital and the Blythedale Institution. On the latter date he was returned to his home with instructions to return to the clinic regularly, where he was a patient until the time of the trial. At the time of the trial the boy was severely crippled, walked with a limp, and one of his legs was stiff.

Upon the trial Dr. Degenhardt, who supervised the treatment of the boy during the first few months that he was at the Kings County Hospital, was called as a witness. The doctor testified that, when the boy was admitted, both of his legs were in casts from the knee joints down and the boy was running a temperature of 101 . He removed the casts and then found that the right ankle over the middle malleolus had a healed sinus, that there had been a long, deep wound over the entire length of the left tibia, that there was a sinus over the lower end of the left femur and that there were large open wounds which were dirty and had thick white crusts about them. He said that there was a moderate amount of thick, tenacious purulent discharge from the region of the left tibia and that X-rays, subsequently taken, showed destruction of the proximal two-thirds of the left tibia. He diagnosed the condition as chronic osteomyelitis of the right tibia, left tibia and femur and indicated that it had existed prior to admission in an acute stage. The infectious process and drainage continued until about May 30th, when the improvement was so far advanced that the doctor put on new casts without drainage windows on both legs from the toes to the upper third of both thighs.

The records of the case from the defendant hospital were admitted in evidence on plaintiff's case, as was a portion of the testimony of the defendant physicians taken before trial.

On the record as it stood when nonsuit was granted, plaintiff had made out a prima facie case on the issue of malpractice against the defendant physicians and of willful abandonment of his case against defendants Koster and the hospital. Sufficient evidence was presented to warrant a jury in awarding damages on those counts. Carpenter v. Blake, 75 N.Y. 12; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760,63 Am.St.Rep. 655;Benson v. Dean, 232 N.Y. 52, 133 N.E. 125. At least, the jury might have found that the defendants had prematurely and willfully discharged themselves from attention to the case while the patient was desperately ill and before he was cured without giving information or advice as to subsequent treatment or the desperate and dangerous condition and character of the disease, all of which led to aggravation of his condition and illness. Benson v. Dean, supra. Common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly have suggested to the jury that the condition of the boy at the time that he was left without hospitalization and abandoned by the defendants was not compatible with skillful treatment. Benson v. Dean, supra. That the plaintiff's parents were misled by the conduct of the physicians to the plaintiff's detriment is inferable from the facts adduced. Carpenter v. Blake, supra. Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact, to furnish the basis for a determination by a jury of unskillful practice and medical treatment by physicians; but where the matters are within the experience and observation of the ordinary...