Zeleznik v. Jewish Chronic Disease Hospital

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARTUSCELLO
• Citation: Zeleznik v. Jewish Chronic Disease Hospital, 47 A.D.2d 199, 366 N.Y.S.2d 163 (N.Y. App. Div. 1975)
• Decision Date: 26 March 1975
• Parties: Alvin ZELEZNIK, Respondent, v. JEWISH CHRONIC DISEASE HOSPITAL, Defendant, and Dr. Alcides Celiar Pomina and Dr. Aaron Berman, Appellants.

Page 163

366 N.Y.S.2d 163

47 A.D.2d 199

Alvin ZELEZNIK, Respondent, v. JEWISH CHRONIC DISEASE HOSPITAL, Defendant, and Dr. Alcides Celiar Pomina and Dr. Aaron Berman, Appellants.

Supreme Court, Appellate Division, Second Department.

March 26, 1975.

James E. Hannon, New York City (Norman Bard, Brooklyn, of counsel), for appellants.

Stern, Safran & Gerstner, P.C., New York City (Seymour Stern, of counsel), for respondent.

Before MARTUSCELLO, Acting P.J., and LATHAM, COHALAN, BRENNAN and BENJAMIN, JJ.

MARTUSCELLO, Acting Presiding Justice.

The plaintiff suffered a serious injury to his right hand following a right brachial angiography administered to discover the cause of a neurological deficit of his left side. By special verdicts, defendants Drs. Pomina and Berman were held liable for lack of the plaintiff's informed consent to the procedure and for negligence in treatment following the angiography. The jury awarded damages of $500,000. These defendants have appealed from so much of the ensuing judgment as is against them based on this award of damages.

We hold that the charge to the jury as to various aspects of the cause of action based on lack of informed consent was incorrect and that the plaintiff failed to prove negligence in the post-angiogram treatment. We further find that the plaintiff's counsel improperly brought to the attention of the jury matter of such prejudicial nature as to have required a mistrial. For all of these reasons we reverse and grant a new trial.

On May 31, 1966 and again on June 22, 1966, the plaintiff felt weakness and numbness in his left arm and leg and upon each of these occasions he consulted his family physician, Dr. Ward. The symptoms on the earlier date disappeared by the time he arrived at his doctor's office. The recurring symptoms of June 22, however, were persistent and Dr. Ward thereupon arranged for the plaintiff's admission on that date to the Wyckoff Heights Hospital.

Defendant Dr. Pomina was called in on June 23 for a neurosurgical consultation. He was employed as a neurosurgical assistant by defendant Dr. Berman. After examining the plaintiff, Dr. Pomina advised him that he should undergo an angiogram procedure which was necessary in order to ascertain what was wrong with him. The plaintiff was willing to do this and on June 26 he was transferred to the Jewish Chronic Disease Hospital for the purpose of having such procedure performed. On June 27 Dr. Berman examined the plaintiff at the latter hospital and advised him that he was in agreement with Dr. Pomina that he (the plaintiff) should undergo an angiogram.

The plaintiff testified that when Dr. Pomina advised that an angiogram be taken Dr. Pomina explained that the procedure was to inject a dye into his arm which would go up through the blood vessels to his head, that X rays would be taken of its path and 'in this way * * * there would be a good possibility that they would be able to find out what caused this problem on my left side.' The plaintiff asserted, however, that Dr. Pomina never advised him of any risks inhering in this procedure.

In his pretrial deposition which was read into evidence as part of the plaintiff's case, Dr. Pomina stated that when he recommended the angiogram he told the plaintiff that there was 'a certain per cent of risk involved' and that 'the neurological deficit could be made worse'; that he did not mention any other risks although he was aware of them; and that, when asked to specify what additional risks there were, stated: 'Death, worsening of the neurological condition, including a complete permanent hemiplegia and anaphylactic shock, spasm of the artery, thrombosis of the artery, embolisms, convulsion, * * * injury to * * * the median nerve, destruction of the artery on the site of the injection, improper injection technique. There are many others. These are the ones that come to my mind at the moment.'

The plaintiff testified that if he had been told of the risks specified in Dr. Pomina's deposition he would not have consented to the angiography. In explaining why he would have refused he said that his 'own physical condition was not that critical that would require undergoing the hazards and the risks,' that he also 'would have wanted to find out if there was some alternate test * * * some other test (that) could be given that would help them to decide what was wrong with me' and that 'in addition to this * * * I would want to discuss my own situation with other doctors' and 'with my wife.'

Drs. Pomina and Berman testified that on separate occasions they told him, variously, that there was 'a certain amount of risk'; that 'the most common one was the worsening of the neurological deficit that he already has, that usually was transient'; that 'this was not a simple and innocuous procedure'; 'that the test did carry some inherent risks'; that 'the risks, however, were very infrequent. There was a far greater risk in not doing the procedure than in doing the procedure'; and that following the injection there may be a hemiparesis which on rare occasions may be converted into a paralysis, 'that this was a possibility, but that this did not occur very frequently. In fact, it was rather uncommon.'

The angiogram procedure was performed by Dr. Pomina on June 27, at 4:50 P.M., at the Jewish Chronic Disease Hospital. While the injection of the dye was being done and the X rays taken, the left side of the plaintiff's body started to convulse. Although the convulsion started to subside, Dr. Pomina terminated the procedure by removing the needle. The plaintiff was then returned to his room and hot compresses were applied to his right arm and hand. At 6:00 P.M., Dr. Pomina noted some improvement in the right arm. At that time he left the hospital to see a patient at another hospital, after leaving instructions for continuous application of compresses and that he was to be notified if the right hand were to become blue, cold or mottled.

While Dr. Pomina was at the other hospital he was notified that the condition had worsened and he returned to the plaintiff's bedside between 7 and 7:30 P.M. At about 7:30 P.M. he performed a stellate ganglion block, a procedure involving a local blocking of the nervous system to enervate and thus expand the tightened artery. This caused improvement in that there was some return of the brachial and radius pulses and more blood was flowing into the arm. Nevertheless, he called Dr. Berman and Dr. Rheingold, a vascular surgeon, both of whom arrived at about 9:15 P.M. Dr. Berman noted in the hospital record that 'despite good results from a stellate ganglion block, the wrist and lower arm remained cold and mottled; weakness of the small muscles of the hand indicates vascular occlusion of both radial and ulnar arteries. I agree with Dr. Rheingold that exploration is indicated and might (sic) be carried out immediately if the right arm is to be saved.'

The exploration of the artery necessitated the calling to duty of operating room nurses who had gone home and the proparation of the operating room and the necessary instruments, and, as a consequence, the operation was not started until about 11:30 P.M. It was performed by Dr. Rheingold, with Dr. Berman and Dr. Pomina assisting. A thrombus was found and removed and the radial pulse reappeared. However, as the incision was being closed the radial pulse disappeared. The artery was again explored. No further clots were found. Thereafter, a further stellate ganglion block was performed.

Nevertheless, the circulation to the right hand did not fully return. The plaintiff ultimately required 23 major surgical operations (not performed at this hospital or by the defendant doctors), resulting in amputation of two fingers and a serverely debilitated and deformed hand. Ironically, the neurological deficit of the left side (the investigation of which had necessitat the performance of the angiogram) cleared up in a relatively short time and without any particular medical attention.

The medical witnesses on both sides agreed that the introduction of the injection needle had induced a spasm which had in turn caused occlusion of the brachial artery. Although a thrombus had been removed by Dr. Rheingold, full circulation was not restored because there had developed undissolved thrombotic material in the arterioles closer to the hand which could not be reached. This eventually caused gangrene, requiring the aforementioned amputations and resulting in the present mutilated condition of the hand.

At the close of the plaintiff's case, the action as against Jewish Chronic Disease Hospital was dismissed, and the plaintiff does not appeal from the portion of the judgment which is in favor of that defendant. Further, the jury's special verdict as to whether the appellants were negligent in the angiogram procedure itself was in favor of the appellants, and the plaintiff has not raised an issue as to that on this appeal. ^*

The jury's special verdict was for the plaintiff both on the issues of lack of informed consent and of departure from approved and accepted methods with respect to the post-angiogram treatment and awarded damages of $500,000. We discuss first the verdict as to the post-angiogram treatment.

The plaintiff alleged that the appellants' 'delay' until 11:30 P.M. in the surgical exploration of the artery was a proximate cause of his condition. Essentially, it is his position that an emergency situation arose because of the marked loss of circulation to the right hand and that if the surgical exploration had occurred earlier the clot occlusions in the arterioles would not have developed. He contends that waiting as long as the appellants did to see whether circulation would be restored by more conservative methods, and particularly Dr. Pomina's absence from the bedside from 6 P.M. to between 7 P.M. and 7:30 P.M., constituted negligence in the post-angiogram treatment.

In answer, the appellants...