Tiernan v. Heinzen

• Decision Date: 24 September 1984
• Citation: 480 N.Y.S.2d 24,104 A.D.2d 645
• Parties: James Francis TIERNAN, as Administrator, Respondent, v. Bruce R. HEINZEN, Defendant; Lee F. Vosburgh, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 24

480 N.Y.S.2d 24

104 A.D.2d 645

James Francis TIERNAN, as Administrator, Respondent, v. Bruce R. HEINZEN, Defendant Lee F. Vosburgh, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Sept. 24, 1984.

Martin, Clearwater & Bell, New York City (Bruce G. Habian, New York City, and Andrew S. Garson, Brooklyn, of counsel), for appellants.

Harley & Browne, P.C., New York City (J. Austin Browne, Jerome M. Leitner, New York City, and Richard T. Farrell, Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, GIBBONS, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for wrongful death attributable to medical malpractice, defendants Vosburgh, Finn and Kotarsky appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County, entered March 31, 1983, as, upon a jury verdict, as reduced and amended by the court upon appellants' posttrial motion, awarded plaintiff damages in the principal sum of $1,650,000.

Judgment modified, on the facts, by reducing the amount awarded to plaintiff to $150,000, representing loss of decedent's services and pain and suffering and by adding a provision severing plaintiff's claim for wrongful death and granting a new trial with respect thereto, unless, within 30 days after service upon plaintiff of a copy of the order to be made hereon with notice of entry, plaintiff shall serve and file in the office of the clerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce the verdict with respect to the claim for wrongful death to the principal sum of $750,000, and entry of an amended judgment in accordance therewith. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. In the event the plaintiff so stipulates then the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs or disbursements.

On April 24, 1974, plaintiff's decedent, Maureen Tiernan, visited her obstetricians, a partnership consisting of defendants Finn, Vosburgh, and Kotarsky. She had missed a menstrual period and correctly suspected that she was pregnant. Mrs. Tiernan further reported that she had discovered a small lump in her left breast about two weeks before the visit. Doctor Kotarsky examined her and discovered a four to five centimeter mass in the upper outer quadrant of her left breast. He referred his patient to defendant Dr. Heinzen, a surgeon. Dr. Heinzen examined Mrs. Tiernan on April 27, 1974. He examined the glands around her neck and both breasts and concluded that the mass was a benign tumor, either a fibroadenoma or a localized area of enlargement of a lobule area of the breast connected with the pregnancy. Dr. Heinzen referred Mrs. Tiernan back to her obstetricians with instructions to check for any change in the mass.

At the end of July, 1974, defendant Finn noticed that the mass had grown to fill the entire left upper quadrant of the breast. The mass had also entered two other quadrants of the breast. He sent Mrs. Tiernan back to Dr. Heinzen who performed a biopsy on the mass on August 1, 1974. While his patient was under the same anesthesia, Dr. Heinzen, having determined that the mass was malignant, performed a radical mastectomy of the left breast. Radiation therapy followed. In November, Mrs. Tiernan's child was delivered by caesarian section.

On January 6, 1975, lumps in Mrs. Tiernan's operation incision were discovered. The lumps were found to be cancerous on January 10. By February, 1975, the cancer had spread to Mrs. Tiernan's hip and back. Finally, on Thanksgiving Day, 1975, Mrs. Tiernan died of a cerebral hemorrhage caused by the spreading of the cancer to her brain.

At trial, plaintiff's expert, a professor of obstetrics and gynecology at Cornell Medical School, testified that in its treatment of Mrs. Tiernan the obstetrical group had departed from the standard of care in the community in 1974. He claimed that there was no departure in the group's original referral of Mrs. Tiernan to a surgeon. However, he continued, after the surgeon referred her back to the obstetricians they failed to follow accepted practice by omitting to make an accurate and careful delineation of the mass, by not performing other diagnostic tests, and by not examining the breast at more frequent intervals. The expert further stated that these departures from accepted practice were the competent producing cause of Mrs. Tiernan's death, claiming that if the malignancy had been diagnosed in its early stages the prognosis for recovery would have been excellent.

We, unlike our dissenting colleagues, believe that a prima facie case of medical malpractice was made out against the defendant obstetricians. It is true that the obstetricians could not perform an excisional biopsy on the mass. However, plaintiff's expert testified that other diagnostic tests were available to them, namely, mammography, thermography, sonography, and needle aspiration, and that these tests, in the aggregate, had an accuracy rate of over 95%. The dissent cites testimony of defense witnesses who claimed that these tests were either unavailable, untrustworthy, or not indicated; however, this testimony merely created an issue for the jury. Indeed, it is noteworthy that the defendant obstetricians have not argued before this court that a prima facie...