54 N.Y.2d 176 | NY | 1981
OPINION OF THE COURT
When multiple theories of liability have been submitted to a jury which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories. In this medical malpractice action, because plaintiffs failed to introduce evidence sufficient to sustain a verdict in their favor on two of the theories submitted, the order of the court below affirming plaintiffs’ judgment must be reversed and a new trial ordered with respect to the theories of liability for which the proof was sufficient.
On June 17, 1976 plaintiff Joan Davis underwent a bilateral subcutaneous mastectomy,
We agree with the view thus expressed and accordingly reverse the order of the Appellate Division. Because it is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine that the verdict was not predicated on a finding in plain
With respect to the first theory of liability placed before the jury — erroneous diagnosis of Mrs. Davis’ condition by defendant Caldwell — the record is devoid of proof (and plaintiffs point to none) that the operating surgeon ever made a diagnosis or was ever called on to do so. Although plaintiffs’ contention is that before Mrs. Davis agreed to undergo substantial breast surgery they had been informed, in error, that there was cancerous tissue present, Mrs. Davis herself testified that at no time did Dr. Caldwell make the statement that she had cancer. The evidence was uncontradicted that the preoperative diagnosis, which appeared on the hospital records as “Bilateral mastopathy with calcification suspicious of carcinoma on mammogram [performed May 3, 1976]”,
In like vein, and again without demonstration by plaintiffs to the contrary, no proof was offered to support a claim that the operation performed on Mrs. Davis was unnecessary, which the court submitted to the jury as the third theory of liability. There was no controversy that cancerous tissue had been found to be present in one of the patient’s breasts about two years earlier at which time she had refused to submit to a mastectomy despite a recommendation of combined treatment by radiation and mastectomy made by both Dr. Chandler, her then attending surgeon, and by the board of the hospital where she was a patient, meeting at its weekly cancer conference. It was also uncontroverted that the mammogram performed by Dr. Logan on May 3, 1976, as part of a program of annual mammograms of Mrs. Davis initiated following the removal of cancerous tissue during the April, 1974 biopsy, disclosed the existence of new calcifications in the right breast suspicious of carcinoma as well as the continued existence of disease previously seen in the left breast. Finally, it was unquestioned that the surgery performed on June 17, 1976 was the least comprehensive and least extensive of the four types of mastectomy employed in cases of cancer or suspected cancer. Absent medical expert evidence offered by plaintiffs, of which there was none, that the surgery was unnecessary in the circumstances present, the claim predicated on such a contention should have been dismissed when defendants moved for such relief at the close of the evidence.
We reach a contrary conclusion with respect to plaintiffs’ claims that liability on the part of defendants might be found to exist (1) by reason of their having failed to conform to the standard of medical care extant in the community when Dr. Caldwell proceeded with Mrs. Davis’ subcutaneous mastectomy without a biopsy of the patient’s breast having first been performed and the results obtained, and (2) by reason of their failing accurately to have advised Mrs. Davis of her condition prior to the operation so
A similar conclusion is warranted with respect to the claim founded on an. alleged failure to have secured an informed consent to the surgery from Mrs. Davis, as to which defendants assert there is a fatal defect in the absence of expert medical testimony attacking the qualitative sufficiency of the consent to the bilateral mastectomy given by Mrs. Davis. In making this assertion defendants rely on CPLR 4401-a, which provides: “A motion for judgment at the end of the plaintiff’s case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent.”
Plaintiffs’ theory of liability based on lack of informed consent to Mrs. Davis’ surgery was supported by proof that following the mammogram taken on May 3, 1976 Dr. Chandler informed them that a cancer was present in Mrs. Davis’ right breast, by testimony of Mr. Davis that Dr. Logan (the breast cancer diagnostician) had told them immediately after completion of the mammogram that “there was a very high chance, ninety percent, that the cancer had returned” without mention of a biopsy as a desirable further diagnostic procedure, and by testimony of both plaintiffs that defendant Caldwell had told them that “the cancerous tissue” would be removed during the subcutaneous mastectomy.
It follows that the judgment in favor of plaintiffs must be reversed and the case remitted for a new trial. On any such new trial plaintiffs will be precluded, of course, from
For the reasons stated, the order of the Appellate Division should be reversed, with costs to abide the event, the judgment for plaintiffs set aside, and the case remitted to Supreme Court for a new trial in accordance with this opinion.
Chief Judge Cooke, and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.
Order reversed, etc.
. A mastectomy is surgical removal of part or all of the breast. Subcutaneous means beneath the skin.
. Precisely stated, the trial court termed them five “causes of action”. Such description, however, bore no correlation to what by happenstance were five causes of action alleged in the complaint. From the context in which the language was used it is apparent that “theories of liability” would have been more accurate terminology.
. A biopsy is surgical removal of tissue for diagnostic examination.
. Significantly different legal consequences attend an instruction of the jury as to the plaintiffs’ evidentiary contentions, in effect the equivalent of a marshaling of the evidence (cf. Food Pageant v Consolidated Edison Co., 54 NY2d 167 [decided herewith]).
. Mastopathy is any disease of the breasts. Calcification is a calcium deposit in tissue which may be indicative of a cancerous process. Carcinoma is a medical term for cancer. A mammogram is a diagnostic X-ray examination of the breasts employed to determine the presence of cancerous tissue.
. Plaintiffs’ versions of the conversations with all three of the physicians named were controverted in significant part by the latter. The conflict however
. The fourth so-called “cause of action”, described by the trial court as alleging “that the defendants failed to follow accepted standards of medical care in the community in connection with problems of this sort”, in our view stated nothing not already included in the other four “causes of action” and did not constitute an independent theory of liability.