Scott v. Brooklyn Hosp.

• Decision Date: 25 July 1984
• Citation: 480 N.Y.S.2d 270,125 Misc.2d 765
• Parties: Elizabeth M. SCOTT and David P. Scott v. BROOKLYN HOSPITAL, Dr. Mario Gonzalez and Dr. Richard Calame.
• Court: New York Supreme Court

Page 270

480 N.Y.S.2d 270

125 Misc.2d 765

Elizabeth M. SCOTT and David P. Scott v. BROOKLYN HOSPITAL, Dr. Mario Gonzalez and Dr. Richard Calame.

Supreme Court, Special Term,

Kings County, Part 1.

July 25, 1984.

Weingrad & Weingrad, P.C., New York City, for plaintiffs.

Furey & Mooney, Hempstead, for defendants Brooklyn Hosp. and Dr. Gonzalez.

Gordon & Silber, New York City, for defendant Dr. Calame.

OPINION OF THE COURT

LEWIS L. DOUGLASS, Acting Justice.

The present action in medical malpractice was commenced by service of summons and complaint dated June 20, 1977. The complaint alleges that defendants Dr. Mario Gonzalez, Dr. Richard Calame, and Brooklyn Hospital were negligent in treating plaintiff Elizabeth M. Scott for cancer. Mrs. Scott is suing the defendants for injuries sustained as a result of the alleged negligence, and Mr. Scott is suing for loss of services and consortium of his wife and the expenses incurred in attempting to cure her injuries.

In the motion presently before this court, the defendants move for an order, pursuant to CPLR 3212, granting summary judgment on their behalf. In support of the motion, the defendants direct the court's attention to section 920 of the Restatement of Torts, 2d, for the proposition that "where a defendant confers upon a plaintiff a benefit by virtue of his (the defendant's) own negligence, then the plaintiff's recoverable damages are to be reduced by the value of that benefit." In application of this proposition, the defendant argues that, as a matter of law, the injuries complained of by the plaintiffs are completely outweighed by the benefit of the life-saving results of the treatment.

The cancer for which Mrs. Scott received treatment is stage III carcinoma of the endometrium. The defendants treated her with radium therapy, followed by a hysterectomy and cobalt radiation therapy. The defendants argue that the treatment was successful in arresting the cancer in that Mrs. Scott is alive today, nine years after treatment.

It is basic tort law that a validly-stated cause of action in negligence requires the following elements:

(1) A duty owed from defendant to plaintiff;

(2) a breach of the duty owed from defendant to plaintiff (3) injury sustained by plaintiff as a proximate cause of the above-named breach.

Assuming, only for the purposes of this motion, the plaintiffs' allegations of negligence to be true, the defendants argue that the gift of life outweighs the injuries sustained by plaintiff. Therefore, the defendant argues, since, as a matter of law, the plaintiff sustained no injury greater than the benefit conferred upon her, the plaintiffs have failed to state a valid cause of action.

There is a valid basis for the defendants' argument. Their point is that they did a socially-desirable act in saving Mrs. Scott's life and that the law should recognize and encourage such behavior. The defendants argue that personal injury less than death is to be preferred to death. In other words, whereas plaintiff would have died without the treatment, she is now alive with injuries, and life with injuries is preferred over no life at all.

Certainly, this court agrees that life is preferred over death. However, the issue before this court is not so broad.

The plaintiffs claim that the application of the treatment was negligent. The amended bill of particulars states the following:

"4. The initial radium implant was done by DR. MARIO GONZALEZ and DR. RICHARD CALAME, the defendants herein. The cobalt treatment was done by DR. MARIO GONZALEZ. Both of the aforesaid treatments were done with the assistance of employees of BROOKLYN HOSPITAL, both male and female, wearing white medical coats, and the names of the parties are not within the knowledge of the plaintiff herein.

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"6. The defendants failed to warn or advise the plaintiff of the side effects and hazards of the prospective treatment; failed to administer the proper dosage of radium and cobalt; failed to apply it properly in that it resulted in excessive injuries and side effects set forth herein.

"7. It is plain that the insertion and radiation and cobalt treatment was applied with defective equipment and that the resultant injuries set forth herein were caused by the improper equipment, the exact extent of which is within the knowledge of the defendants herein.

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"11. (a) Burns subsequent to treatment on upper legs, excessive heavy vaginal discharge with itching and burning sensation, opened abscess, sloughing off of the bladder lining resulting in shrunken bladder, all resulting in a shrinking of the vaginal opening and rectum and other related and adjacent areas, resulting in continuous and intermittent bleeding and terminating all possibilities for sexual intercourse."

Also, in a further amendment of the bill of particulars, the plaintiffs state the following:

"Paragraph 6--The defendants failed to warn or advise the plaintiff of the side effects or hazards of prospective treatment; failed to provide any midline shielding of the bladder or rectum and generally failed to treat properly in that it resulted in excessive injuries and side effects set forth herein."

In opposition to the motion for summary judgment on behalf of the defendants, the plaintiffs argue two points. First, it is claimed that there is an issue of fact which remains for the trier of facts to decide. Second, plaintiffs disagree with the defendants' application of section 920 of the Restatement of Torts, 2d.

Plaintiffs claim that the defendants' argument is erroneous in that it assumes that Mrs. Scott would have died from the stage III carcinoma and that the treatment is, indeed, responsible for the arrest of the cancer. Both sides argue this point with medical support on each side, but the seriousness of a stage III carcinoma does not seem to be such a substantial issue of fact as to warrant a trial. In any event, plaintiffs' second point demands greater attention.

Plaintiffs argue that, even if defendants' treatment did, indeed, save Mrs. Scott's life, section 920 of the Restatement of Torts, 2d, should not be applied in the manner presented by defendants. Plaintiffs note that the Restatement addresses cases where defendant's negligence confers a benefit on plaintiff. Therefore, in a case where a negligent act confers both a benefit and an injury on plaintiff, the benefit may diminish the injury. But, plaintiffs argue, this is not the circumstance in the present case. The defendants' negligence did not confer a benefit on the plaintiff. The treatment saved her life. On the other hand, the negligent application of the treatment caused the injuries complained of in this action. In other words, Mrs. Scott could have gone to another doctor and another hospital where this same life-saving treatment could have been administered without negligence and without any of the resulting injuries complained of in this instance.

In support of the motion for summary judgment, the defendants cite several cases that involve an alleged cause of action for "wrongful life" or "wrongful birth". Such cause of action is...