Twitchell v. MacKay

• Decision Date: 23 December 1980
• Parties: Frank Thomas TWITCHELL and Carol Twitchell, Individually and as Husband and Wife, Respondents-Appellants, v. S. Ross MACKAY, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 516

434 N.Y.S.2d 516

78 A.D.2d 125

Frank Thomas TWITCHELL and Carol Twitchell, Individually and as Husband and Wife, Respondents-Appellants, v. S. Ross MACKAY, Appellant-Respondent.

Supreme Court, Appellate Division, Fourth Department.

Dec. 23, 1980.

Robert J. Hirsch, P. C., Rochester, for appellant-respondent (Laura Poyser, Macedon, of counsel).

Bond & McDonald, Geneva, for respondents-appellants (William McDonald, Geneva, of counsel).

Before SIMONS, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

DOERR, Justice.

In this action brought by plaintiffs to recover for personal injuries allegedly inflicted upon plaintiff Frank Twitchell by defendant, a medical doctor, in the course of an examination of Frank Twitchell's knee for disability insurance purposes, the complaint alleges five separate causes of action numerically designated as follows: First, medical malpractice; Second, negligence; Third, intentional tort and lack of informed consent; Fourth (derivatively) medical malpractice; Fifth (derivatively) negligence. The second, third and fifth causes of action contain relief clauses in which a specific dollar amount is requested. Additionally the complaint states that punitive damages in the amount of $2,000,000 is requested for the second, third and fifth causes of action. The acts complained of in the several causes of action are largely indistinguishable save for the elimination from the second and fifth causes of action of paragraph 15 of the complaint which inter alia, uses the precise words "medical malpractice".

Defendant moved pursuant to CPLR 3211, subd. (a) par. 7 and CPLR 3017, subd. (c) for an order dismissing the second, third and fifth causes of action along with any alleged cause of action for punitive damages on the ground that CPLR 3017, subd. (c) prohibits the inclusion of any statement of specific monetary damages in a complaint based upon medical malpractice. Special Term granted the motion insofar as it related to the third cause of action and denied the motion as to the second and fifth causes of action. Both parties appeal from that determination.

As noted above, in their complaint plaintiffs have attempted to state alternative theories for recovery. Noteworthy is the fact that they also make inconsistent claims in their several causes of action, for on this appeal they argue that no physician-patient relationship existed between plaintiff Frank Twitchell and defendant Mackay. Consequently, they assert that there can be no claim for medical malpractice. Pleading inconsistent or alternative causes of action is specifically permitted by statute (CPLR 3014; CPLR 3017(a)) and there is no dispute that an action for personal injuries may be maintained, in the proper case, on the dual theories of medical malpractice or simple negligence where a person is under the care and control of a medical practitioner or a medical facility (Hale v. State of New York, 53 A.D.2d 1025, 386 N.Y.S.2d 151). "To prove the negligence, in many instances, it will not be necessary to get into the realm of malpractice. Thus, the leaving of an inflammable substance spilled on sheets (Bing v. Thunig, supra); the application of a scalding hot water bottle to a patient (Philips v. Buffalo Gen. Hosp., 239 N.Y. 188, 146 N.E. 199); and electric light left negligently under the sheets by an attendant (Dillon v. Rockaway Beach Hosp., 284 N.Y. 176, 30 N.E.2d 373); failure to have sideboards placed on the bed (Lee v. Glen Falls Hosp., 265 App.Div. 607, 42 N.Y.S.2d 169; Ranelli v. Society of N. Y. Hosp., 269 App.Div. 906, 56 N.Y.S.2d 481); a mistakenly administered blood transfusion (Necolayff v. Genesee Hosp., 270 App.Div. 648, 61 N.Y.S.2d 832); and a mistaken dispensing of drugs and medicines to patients (Volk v. City of New York, 284 N.Y. 279, 30 N.E.2d 596) are all cases of negligence easily discernible by a jury on common knowledge." (Morwin v. Albany Hosp., 7 A.D.2d 582, 584-585, 185 N.Y.S.2d 85). Malpractice of course is negligence but the jury must usually be presented with evidence educed from the testimony of conflicting experts (McDermott v. Manhattan Eye Hosp., 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469; Hale v. State of New York, supra; Morwin v. Albany Hosp., supra). Thus the test becomes one of whether the case involves a matter of science or art requiring special knowledge or skill not ordinarily possessed by the average person (PJI 1:90) or is one where the common everyday experiences of the trier of the facts is sufficient in order to reach the proper conclusion. In the former, expert opinion testimony is ordinarily required to aid the trier of the facts; in the latter it is unnecessary.

The standards of legal responsibility for those engaged in the practice of medicine is aptly set forth in Pike v. Honsinger (155 N.Y. 201, 49 N.E. 760) wherein the court stated: "The law relating to malpractice is simple and well settled, although not always easy of application. A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery. Upon consenting to treat a patient, it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to his patient resulting from want...