Zimmerman by Zimmerman v. New York City Health and Hospitals Corp.

• Decision Date: 25 January 1983
• Citation: 458 N.Y.S.2d 552,91 A.D.2d 290
• Court: New York Supreme Court — Appellate Division
• Parties: Donna ZIMMERMAN, an infant by her mother and natural guardian, Barbara ZIMMERMAN and Barbara Zimmerman, Plaintiffs-Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Appellant.

Page 552

458 N.Y.S.2d 552

91 A.D.2d 290

Donna ZIMMERMAN, an infant by her mother and natural guardian, Barbara ZIMMERMAN and Barbara Zimmerman, Plaintiffs-Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 25, 1983.

June A. Witterschein, New York City, of counsel (Stephen J. McGrath, New York City, with her on the brief; Frederick A.O. Schwarz, Jr., New York City) for defendant-appellant.

Morton H. Feder, New York City, of counsel (Jeannine A. Broomhall, Garden City, with him on the brief; Bases Russo Lawrence Ciovacco Walsh & Feder, P.C., Garden City), for plaintiffs-respondents.

Before SANDLER, J.P., and SILVERMAN, BLOOM, MILONAS and KASSAL, JJ.

SILVERMAN, Justice.

In this case the jury found that there was no informed consent to the surgery performed on the infant plaintiff; the jury awarded the infant plaintiff, Donna Zimmerman $250,000 damages and awarded to the plaintiff mother Barbara Zimmerman for loss of services the sum of $50,000. The trial judge thought that the verdict of $250,000 to the infant plaintiff was "shockingly inadequate" and granted that plaintiff's motion for a new trial as to damages only unless defendant consented to increase the verdict to $400,000. The trial court also directed a new trial as to damages only with respect to the plaintiff mother unless that plaintiff consented to a reduction of her verdict to $10,000.

Defendant New York City Health and Hospitals Corporation appeals from the order and interlocutory judgment embodying these determinations.

The surgery was performed by a fourth year resident at the hospital, a chief resident responsible for the care of patients under the supervision of an attending physician, and who also had teaching responsibilities with respect to junior residents and medical students. He had performed some 50 such operations, though none on a precisely similar condition. The trial judge submitted a number of special questions to the jury; and in connection with the fourth such question his instructions could have been interpreted as suggesting a failure to state explicitly details as to the surgeon's training and experience was a factor that might properly be considered in determining whether the mother's consent to the operation was an informed consent. We think that in the circumstances of the present case that was improper.

But the trial judge also submitted other questions, not affected by this discussion, to which the jury's answers were to the effect that Donna's mother did not have the mental capacity to consent to the operation; that the docto to whom that consent was given knew or should have known of that incapacity; and that the doctors had failed to explain to the mother the material risks of the operation, the risks of not operating, and the alternatives if any to surgery. These answers support the verdict as to liability on the ground of lack of informed consent.

However, we do not agree that the $250,000 verdict in favor of the infant plaintiff was so "shockingly inadequate" as to justify the trial judge's interference with the jury's assessment.

The infant plaintiff, Donna, was born in 1966. The surgery here complained of was performed in 1974 when Donna was about eight years old. The child was suffering from a condition called spondylolisthesis, which causes destruction of ligaments and produces pressure on nerve structures because of an improper alignment of the vertebrae of the spinal column. The surgery performed was a decompressive spinal laminectomy and fusion. A decompressive laminectomy attempts to relieve the pressure on the nerves and the fusion attempts to properly realign and secure the vertebrae to prevent further destruction.

That Donna was and is very ill is clear. Shortly after the surgery, Donna became incontinent of the bowel and bladder, i.e., she was unable to control the natural evacuations of these organs. The incontinence of the bowel ceased some time thereafter; the bladder problem remains and is permanent. Donna's mother testified she had to help Donna to credate herself, a procedure where the patient pushes on the abdomen to empty the bladder. She stated that Donna has to wear "Pampers" all the time and carries them in a paper bag, hidden in her school bag, because she is embarrassed that the other children will see them; that every morning Donna wakes up in a wet bed; that she suffers from urinary tract infections and is required to take medication; and that Donna began menstruating at 12 years of age, and because of her incontinent condition, her periods are much more messy.

The questions remain, to what extent was the surgery the cause of Donna's condition; the extent if any to which Donna's condition is worse because of the surgery than it would have been had the surgery not been performed; and whether in the totality of the circumstances, the jury's appraisal of the appropriate damage award to Donna was so far outside the range of reasonableness as to justify the trial court's interference with the jury's appraisal.

We note as a preliminary matter that there is no dispute that the operation was...