Spinosa v. Weinstein

• Decision Date: 31 May 1991
• Citation: 168 A.D.2d 32,571 N.Y.S.2d 747
• Parties: Ann SPINOSA, et al., Appellants-Respondents, v. Steven L. WEINSTEIN, D.P.M., et al., Respondents-Appellants, Robert P. Hochran, D.P.M., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 747

571 N.Y.S.2d 747

168 A.D.2d 32

Ann SPINOSA, et al., Appellants-Respondents, v. Steven L. WEINSTEIN, D.P.M., et al., Respondents-Appellants Robert P. Hochran, D.P.M., Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

May 31, 1991.

Howard S. Davis & Associates, New York City (Janine Silver, of counsel), for appellants-respondents.

Kopff, Nardelli & Dopf, New York City (Martin B. Adams and Scott F. Morgan, of counsel), for respondents-appellants.

Reichenbaum & Silberstein, P.C., Great Neck (Meryl R. Neuren, Joseph P. Awad, and Dennis Connor, of counsel), for defendant-respondent.

Before BROWN, J.P., and KUNZEMAN, EIBER and BALLETTA, JJ.

EIBER, Justice.

One of the primary issues presented on this appeal is whether the podiatrist who acted as surgical assistant in a series of operations performed on the plaintiff Ann Spinosa's feet was obligated to obtain her informed consent before participating in the procedures undertaken. For the reasons which follow, we conclude that the surgical assistant was not so obligated, and, therefore, that the Supreme Court properly granted his motion for summary judgment dismissing the complaint insofar as it is asserted against him. We further conclude that the Supreme Court properly granted those branches of the remaining defendants' joint motion which were for summary judgment dismissing the plaintiffs' claims to recover damages for assault, battery, and fraud, but find that the court should have additionally granted that branch of the motion which was for summary judgment dismissing the plaintiffs' demand for punitive damages.

The plaintiffs in this podiatric malpractice action are Mrs. Ann Spinosa and her husband Robert. Mrs. Spinosa, a 54-year-old housewife and mother of two, alleges that she first sought treatment from Dr. Steven Weinstein, a Staten Island podiatrist, for the removal of a corn on January 8, 1979. Although the facts of this case are sharply disputed, Mrs. Spinosa claims that when Dr. Weinstein examined her feet during this first visit and discovered that she had bunions, he remarked "did anybody ever tell you that you don't have to live with this kind of feet?" Mrs. Spinosa replied that she had heard about bunion removal surgery, but that she had children and a family, and could never consider surgery. In response, Dr. Weinstein advised Mrs. Spinosa that his office performed ambulatory surgery, and that she would not have to be "laid up for any length of time". Dr. Weinstein further assured Mrs. Spinosa that she would have beautiful feet after the bunion removal surgery. Before leaving the podiatrist's office, Mrs. Spinosa was given informational pamphlets about ambulatory surgery.

When Mrs. Spinosa returned to Dr. Weinstein's office shortly thereafter to discuss his proposed plan of treatment for her feet, she spontaneously decided to undergo surgery, telling Dr. Weinstein "maybe we should go ahead as long as you think that I will have a beautiful foot". During this visit, Dr. Weinstein commenced "forefoot reconstruction", a process intended to "totally address all of the problems which were contributing to the foot condition, including soft tissue deformities, bone deformities, [and] joint deformities". On 14 occasions over the next two and one-half years, Dr. Weinstein performed a series of 34 surgical procedures on Mrs. Spinosa's feet, including four procedures to remove her bunions and several procedures designed to correct misalignment of her toes. The plaintiffs claim that this process, in which a podiatrist breaks down a surgical procedure into its component parts, and then performs the components over a course of time rather than in a single operation, is known as "fragmentation surgery".

According to the plaintiffs, fragmentation surgery is a discredited practice in the podiatric field because its purpose is to allow the podiatrist to bill the patient's medical insurer a greater sum than would be permissible had the procedures been completed in a single hospital visit. Dr. Weinstein maintains, however, that fragmentation surgery may also constitute a medically acceptable option for a patient, such as Mrs. Spinosa, who wishes to remain on her feet and perform her daily activities while corrective procedures are performed. Comparing the two methods of procedure, Dr. Weinstein further explained that the reconstructive surgery performed on Mrs. Spinosa's feet would have required two separate three-hour operations if performed in a hospital setting. Moreover, according to Dr. Weinstein, Mrs. Spinosa would have remained hospitalized for five days following each operation, would have been required to wear a cast for approximately two months, and would have been unable to wear normal shoes for three to four months. Although Dr. Weinstein estimated that the total cost of two hospital operations to correct Mrs. Spinosa's feet would have been $10,000, the total amount billed for the fourteen operations performed in his office was $17,280.

Mrs. Spinosa alleges that the surgical procedures performed by Dr. Weinstein have caused serious, permanent damage to her feet. For example, she maintains that Dr. Weinstein improperly cut the tendons in her toes, and that as a result, her toes fan out and she is completely unable to move them. She further alleges that Dr. Weinstein cut a bone too short, causing her to walk on a joint, and her feet to become swollen and inflamed. All of Mrs. Spinosa's toes have become hammered, and her feet now cause her constant pain. In addition, her feet are scarred and disfigured.

The plaintiffs subsequently commenced this action against Dr. Weinstein and his professional corporation in May 1983. Also named as defendants in the action were Dr. Richard Steinberg, who participated in a preceptorship in Dr. Weinstein's office in 1979, and Dr. Robert Hochran, a podiatrist who joined Dr. Weinstein's practice as a part-time, hourly employee in May 1979. While the record discloses little information concerning Dr. Steinberg's role in Mrs. Spinosa's care and treatment, the record establishes that Dr. Hochran acted as a surgical assistant during 11 of the 34 surgical procedures performed on Mrs. Spinosa's feet, and that he participated in her follow-up care, by, inter alia, removing sutures and changing bandages. The plaintiffs' complaint alleges five causes of action against all three doctors to recover damages based upon (1) podiatric malpractice, (2) lack of informed consent, (3) assault and battery, (4) fraud, and (5) loss of services. The complaint additionally includes a demand for punitive damages.

Following extensive discovery, in September 1988 Dr. Weinstein, his professional corporation, and Dr. Steinberg (hereinafter the Weinstein defendants) jointly moved for summary judgment dismissing the plaintiffs' demand for punitive damages as well as their third cause of action to recover damages for assault and battery, and fourth cause of action to recover damages for fraud. Dr. Hochran subsequently moved for summary judgment dismissing the complaint insofar as asserted against him, contending, among other things, that he had no duty to advise Mrs. Spinosa of the risks of the surgical procedures performed by Dr. Weinstein, and that he had committed no malpractice in the performance of his duties as surgical assistant.

By decision dated January 30, 1989, the Supreme Court concluded that Mrs. Spinosa's assault and battery cause of action should be dismissed because it was predicated upon lack of informed consent, which is now generally considered a form of medical malpractice. The court additionally dismissed the fraud claim, finding that it was duplicative of the cause of action sounding in lack of informed consent. However, in light of Mrs. Spinosa's claim that the Weinstein defendants performed fragmentation surgery for their economic gain, the court concluded that a triable issue of fact existed as to whether the plaintiffs' demand for punitive damages was proper. Finally, the court granted Dr. Hochran's motion for summary judgment in its entirety, reasoning that since he had not performed any surgical procedure upon Mrs. Spinosa, he had no duty to obtain her informed consent. This appeal and cross appeal ensued.

Dr. Hochran's Role in Mrs. Spinosa's Care and Treatment

One of the central issues presented on appeal is whether Dr. Robert Hochran, who acted as Dr. Weinstein's surgical assistant and provided follow-up care to Mrs. Spinosa, should be held liable for failing to inform her of the potential risks of the procedures which were performed on her feet. In their verified bill of particulars dated February 16, 1984, the plaintiffs generally alleged that Dr. Hochran had "imparted no information concerning possible risks of the procedures which were performed", and that he "should have advised [Mrs. Spinosa] that there was [sic ] risks and hazards associated with the procedures and complications requiring further treatment and residuals [sic ] damage could develop". The record reveals, however, that Dr. Hochran's primary functions as surgical assistant consisted of administering a local anesthetic to Mrs. Spinosa and handing instruments to Dr. Weinstein. Indeed, testifying at an examination before trial in October 1983, Dr. Weinstein admitted that Dr. Hochran's role in Mrs. Spinosa's surgeries "was strictly as a surgical assistant", and entailed that he "simply * * * hold retractors or to do something like that". Dr. Weinstein added that Dr. Hochran "never did any cuts, he never did any bone work. He may have held a hemostat while I tied a bleeder or something, but the actual work was my work". Mrs. Spinosa similarly conceded during her examination before trial in August 1984, that Dr. Hochran performed no actual surgery on her feet. Moreover, when asked what treatment Dr. Hochran provided during her post-operative visits, Mrs. Spinosa explained that he "checked to see if the...