Monahan v. Weichert, 1

• Decision Date: 09 July 1981
• Docket Number: No. 2,No. 1,1,2
• Citation: 442 N.Y.S.2d 295,82 A.D.2d 102
• Parties: William F. MONAHAN, Individually and as Executor of the Estate of Mary Ellen Monahan, Appellants, v. Doctor Harold R. WEICHERT, Respondent. AppealWilliam F. MONAHAN, Individually and as Executor of the Estate of Mary Ellen Monahan, Appellants, v. ST. JOSEPH'S HOSPITAL AND HEALTH CARE CENTER, Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 295

442 N.Y.S.2d 295

82 A.D.2d 102

William F. MONAHAN, Individually and as Executor of the Estate of Mary Ellen Monahan, Appellants, v. Doctor Harold R. WEICHERT, Respondent. Appeal No. 1.

William F. MONAHAN, Individually and as Executor of the Estate of Mary Ellen Monahan, Appellants, v. ST. JOSEPH'S HOSPITAL AND HEALTH CARE CENTER, Respondent.

Appeal No. 2.

Supreme Court, Appellate Division,

Fourth Department.

July 9, 1981.

McCrone & Davis, Syracuse, for appellants; Jeffrey McCrone, Syracuse, of counsel.

Martin, Ganotis & Brown, Syracuse, for respondent Weichert; John Ganotis, Syracuse, of counsel.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for respondent St. Joseph's Hospital; Frank Bersani, Jr., Syracuse, of counsel.

Before DILLON, P. J., and CALLAHAN, DOERR, MOULE and SCHNEPP, JJ.

SCHNEPP, Justice.

In this medical malpractice case we consider primarily the problem of distinguishing the effect of the defendant Dr. Harold R. Weichert's alleged negligence from the natural results of plaintiff William F. Monahan's disease. Trial Term dismissed the complaint against Dr. Weichert at the end of the plaintiff's case concluding that there was insufficient evidence to permit the inference of proximate cause, i. e., any causal connection between defendant doctor's conduct and plaintiff's injury. We reverse and grant a new trial. The proof of proximate cause sufficiently raised issues for determination by the jury.

Plaintiff, who since 1962 had a history of rheumatoid arthritis in a number of joints throughout his body, received medical treatment over the years, consisting of aspirations (removal of fluid from the knees), gold injections and dosages of aspirin and cortisone. Synovectomy operations (removal of the lining of the knee joint, menisci and bony spurs from within the joint) were performed on both knees. To alleviate pain suffered by plaintiff due to his arthritic condition, defendant performed hip operations on plaintiff between 1969 and 1972 which involved installation of prostheses in both his right and left sides. During this time plaintiff used a cane constantly because of the pain in his legs and knees associated with his arthritis. Defendant continued treating plaintiff with the use of periodic aspirations and injections and prescribed a course of physiotherapy which included whirlpool baths and leg weightlifting exercises. In 1970, plaintiff's condition was diagnosed as "markedly progressive rheumatoid destruction of knee joints". Both his knees developed flexion contractures (lack of extension) which defendant described as "fixed flexion deformitof the kneeprecluding or obviating full extension". According to plaintiff his "knee would go all the way back, but it wouldn't go forward all the way". Plaintiff testified that in May 1972 he was told by defendant that a total knee replacement operation would not be feasible but, after indicating that defendant would consider it further, he informed plaintiff that he would be scheduled for surgery. Plaintiff further swore that defendant described neither the nature of the surgery nor the risks involved but stated that the operation would give plaintiff 70% mobility in his knees.

Defendant performed a supracondylar femoral wedge osteotomy on plaintiff's left leg on July 27, 1972 and on the right leg on August 3, 1972. These operations were designed to correct the knee flexion contractures by removing a piece of bone from the femur just above the knee and artificially joining the femur with a plate and screws to form a compensating angle to permit knee flexation. Following surgery plaintiff's legs were placed in plaster casts. When the casts were removed five weeks later plaintiff's legs were stiff and he never regained mobility in either knee despite recommended physiotherapy. Before the 1972 operations Dr. Weichert described plaintiff as suffering from ankylosis or stiffening of the knee joint. In his deposition Dr. Weichert testified that he anticipated that plaintiff, after the surgical intervention, would regain some motion following a course of physiotherapy but that post-operative stiffness is a possibility in any rheumatoid arthritic patient.

Plaintiff offered expert testimony that he has completely ankylosed knees fused between 25 and 30 degrees of flexion, that the condition is permanent and that no further treatment is indicated. Plaintiff's medical expert testified as to pre- and post-operative treatment which, in his opinion, constituted deviations from the acceptable standards of medical practice. When asked whether these deviations were the "proximate cause" of plaintiff's complete loss of motion in both knees, he responded: "There is no denying that this is a progressive condition, and no one can predict with any accuracy what the situation might be some years into the future but, this was, without question, the proximal cause of his immediate loss of motion in his knees which has never been regained. And, how much time or whether this ever would have happened otherwise is pure conjecture". He agreed that the risk of stiffness in the knee joints was a recognized risk of the type of surgery performed in 1972.

Plaintiff claims that the Trial Court misinterpreted the testimony of his expert on the issue of proximate cause to mean that it was conjecture whether Dr. Weichert's negligence caused the injury. Defendant, on the other hand, claims that the dismissal was proper since the testimony of plaintiff's own expert failed to establish that plaintiff's injuries resulted from the surgery and that there was insufficient evidence to permit the inference of proximate cause.

In reviewing the dismissal of plaintiff's complaint at the close of his case, the test is whether "there was any rational basis on which a jury could have found for (Rhabb v. New York City Housing Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335). In applying the test, plaintiff is entitled to a view of the evidence most favorable to his case (Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960; Rhabb v. New York City Housing Auth., supra, p. 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335; see Brown v. City of New York, 47 N.Y.2d 927, 419 N.Y.S.2d 491, 393 N.E.2d 486). In the instant malpractice action, the doctor-patient relationship was not disputed, and it was incumbent upon plaintiff to prove that the defendant doctor violated one of the following three duties: (1) the duty to possess the requisite skill and knowledge as is possessed by the average member of the medical profession in the community in which he practices; (2) the duty to exercise ordinary and reasonable care in the application of that professional knowledge and skill; or (3) the duty to use his best judgment in the application of his knowledge and skill (Pike v. Honsinger, 155 N.Y. 201, 209-210, 49 N.E. 760; Hale v. State of New York, 53 A.D.2d 1025, 386 N.Y.S.2d 151; see, also, Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368). The duty of due care is not limited to diagnosis and treatment, but extends to instructions regarding post-treatment care (Pike v. Honsinger, supra, p. 210, 49 N.E. 760). No issue is raised that plaintiff's proof is insufficient to establish a prima facie case that defendant violated the duty he owed to plaintiff.

In addition, however, plaintiff must establish that the injuries sustained were caused by the doctor's failure to exercise reasonable care (Koehler v. Schwartz, 48 N.Y.2d 807, 424 N.Y.S.2d 119, 399 N.E.2d 1140). The element of causation provides the essential link between the negligent conduct and its consequences, or "between the harm threatened and the harm done" (Sewar v. Gagliardi Bros. Serv., 51 N.Y.2d 752, 759, 432 N.Y.S.2d 367, 411 N.E.2d 786 [Fuchsberg, J. concurring]).

Causation incorporates at least two separate but related concepts: cause-in-fact and proximate cause. Cause-in-fact refers to those antecedent events, acts or omissions which have "so far contributed to the result that without them it would not have occurred" (Prosser, Torts § 41, p. 237; see Koehler v. Schwartz, supra, p. 809). Ordinarily, this requirement is satisfied if the given act or omission was a substantial factor in producing the resultant injury (Dunham v. Village of Canisteo, 303 N.Y. 498, 505, 104 N.E.2d 872; Nastasi v. State of New York, 55 A.D.2d 724, 389 N.Y.S.2d 175; Restatement, Torts 2d, § 431). It is not sufficient to find a defendant negligent, unless it is further shown that such negligence was the proximate cause of the injuries suffered by a plaintiff (Dunham v. Village of Canisteo, supra, p. 506, 104 N.E.2d 872; see Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 292 N.Y.S.2d 48). "cause is a question separate and apart from that of duty and negligence and it is only when these initial issues are resolved against the tort-feasor that the question of proximate cause arises" (Dunn v. State of New York, 29 N.Y.2d 313, 318, 327 N.Y.S.2d 622, 277 N.E.2d 647) (citation omitted). Proximate...