32 A.D.2d 208 | N.Y. App. Div. | 1969
This is an appeal by the plaintiff from a judgment of the Supreme Court, entered February 29, 1968 in Clinton
The appellant contends that the jury verdicts were against the weight of the evidence or, in the alternative, that a new trial should be had in the interests of justice. The judgment and order should be affirmed without costs as to the malpractice causes of action and reversed and remanded for a new trial on the informed consent cause of action.
The infant plaintiff suffered from convulsive seizures in the nature of those generally associated with epilepsy from the age of 5% months. At nine years of age (September of 1957) the seizures became more frequent and his pediatrician recommended referral for specialized study. He was referred to the defendant, a neurosurgeon and specialist in the diagnosis and treatment of physical disorders related to or caused by some abnormality of the brain and/or its environment. The defendant examined the plaintiff and recommended hospitalization “ for a complete workup ” or “ routine brain tests ”. After hospitalization, the defendant performed various tests, the last of which was a ventriculogram. All of the tests performed were described by the expert witnesses as being standard diagnostic procedures although the ventriculogram involved the opening of the skull and penetration of the brain itself. It was also established that the ventriculogram was employed only when the other and preceding procedures resulted in inadequate illumination of the brain or its particular area under study. The results of the tests were negative as to any tumor or pressure causing the seizures of the plaintiff and he was discharged from the hospital on October 3,1957. Shortly after this discharge the infant suffered a series of convulsions and was again hospitalized under the care of the defendant. On October 17, 1957, the defendant performed a craniotomy at the site of the skull previously opened for the ventriculogram procedure. The defendant removed a blood clot and necrotic brain, the blood clot having been caused by the ventriculogram procedure. The plaintiff had a substantial recovery until 1962 when his condition began to deteriorate. As of the time of the trial the infant was mentally and physically defective and was in the care of a State institution for the mentally retarded.
The plaintiff offered proof that the defendant had been negligent (malpractice) in several respects: (a) electing to perform the ventriculogram; (b) unnecessarily choosing to test the right side of the brain; (c) failing to promptly diagnose and treat the blood clot upon the second hospitalization (Oct. 9-17, 1957);
The plaintiff alleged in his complaint as a separate cause of action the failure of the defendant to obtain an informed consent before performing the procedure for the ventriculogram. Upon the present record it appears that in considering the theory upon which plaintiff presented his case and the charge of the court as without exceptions and objections, the verdict in favor of the defendant was not against the weight of the evidence.
It is the opinion of this court, however, that the Trial Judge improperly charged the jury with respect to this cause of action when he instructed theimthat “where the physician fails to make a disclosure the burdeii is still upon the plaintiff to prove that his failure to disclose was the proximate cause of any injury that he claims to be entitled to recover for ’ ’, and ‘ ‘ that the defendant is liable for the injuries or disabilities that the infant plaintiff received, that were proximately caused by the failure of the defendant to disclose ”.
It has long been settled in this State that a ‘ ‘ surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages ” (Schloendorff v. New York Hosp., 211 N. Y. 125,129-130), at least in the absence of an emergency. (See McCandless v. State of New York, 3 A D 2d 600, 606, affd. 4 N Y 2d 797.) Although the decision in Schloendorff was directed at a situation in which absolutely no consent had been obtained we are of the opinion that the rule is equally applicable to a situation where one has been given insufficient information upon which to formulate an intelligent consent. An uninformed or invalid consent is tantamount to no
In weighing upon our determination to grant a new trial in the interests of justice the following matters .should be observed. The plaintiff in this case is an infant and was an infant of nine years when the ventriculogram was performed and he cannot of his own knowledge establish a consent, if any, or the information given as to a consent. The father’s testimony was positive as to not having knowledge that “ burr ” holes were to be put in the boy’s head. The testimony of the defendant as a whole is strongly indicative that as a general proposition he discloses very little as to the nature of the procedures he is to employ or their inherent risks and while there might be justification for such a practice as to telling patients of the possible risks or dangers, there would seem no reason for not fully disclosing the nature of the procedures at least to a guardian or responsible third party, when surgical procedures are to be employed in the area of such a delicate organ as the brain. It is established in the present record that at the time the plaintiff was admitted to the hospital for “ routine brain tests ” or a general ‘ ‘ workup ’ ’, there was no contemplation of a ventriculogram by the doctor and accordingly, the written consent given by the father to the hospital and charged by the Trial Justice as being a consent in all probability was not a consent to a ventriculogram. Upon the present record there was little proof of any consent and at best it should have been a question of fact for the jury as to whether or not there was a consent given for a ventriculogram and this is particularly so, where as here,
The judgment should be modified, on the law and the facts, to the extent of reversing the dismissal of the fourth cause of action and a new trial directed thereon, and, as so modified, affirmed, with costs to plaintiff. The order should foe modified, on the law and the facts, so as to grant plaintiff’s motion to set aside the verdict in favor of defendant upon the fourth cause of action, without costs.
Gibson, P. J., Aulisi, Staley, Jr.., and Cooke, JJ., concur.
Judgment modified, on the law and the facts, to the extent of reversing the dismissal of the fourth cause of action and directing a new .trial thereon, and, as so modified, affirmed, with costs. Order modified, on the law and the facts, so as to grant plaintiff’s motion to set aside the verdict in favor of defendant upon the fourth cause of action, without costs.