202 A.D. 443 | N.Y. App. Div. | 1922
Lead Opinion
On the 29th day of October, 1921, plaintiff’s intestate died. On the 25th day of October, 1921, she was operated upon in the Washington Square Hospital, New York city; death on the. day aforesaid resulted. Each of the above-named defendants is a physician and is alleged to have been involved in causes resulting in the death of said decedent. The defendant Savini is proprietor of and conducts the aforesaid hospital. It is alleged that the defendant Charles D. Bles was a consultant with Savini, advised and counseled the operation, and after consultation with the defendant Meeker and after an alleged diagnosis of the difficulty afflicting plaintiff’s intestate, operated upon her. Plaintiff’s complaint alleges three causes of action: The first is for fraud and deceit consisting of misrepresentations and concealment. of conditions made and practiced to induce her to consent to the operation suggested by which she was assured of its simplicity and the relief it would accomplish. Second, that the operation performed was not the operation suggested to plaintiff’s intestate; it was much more complicated and dangerous, and was not, therefore, consented to by her, and that it amounted to an assault upon her. Third, is for malpractice committed upon the deceased. The defendant Savini moved at Special Term to strike from the complaint the first and second causes of action upon the ground that they did not state facts sufficient to constitute a cause of action; the motion was denied and the defendant Savini appealed. The other defendants made the same motion, which was likewise denied, and they also appealed, which appeals present the questions now
I favor affirmance, with ten dollars costs and disbursements to respondent. Defendants permitted to answer within twenty days after judgment herein is entered.
All concur, except Cochrane, P. J., and Van Kirk, J., dissenting as to the first cause of action.
Concurrence Opinion
The complaint states three causes of action. The first cause of action sets forth in general all the facts but contains allegations appropriate to a cause of action for fraud and deceit. The second cause of action repeats the allegations of the first cause of action and adds thereto an allegation appropriate to a cause of action for assault. The third cause of action is an action for malpractice or negligence.
It has been held that where a surgeon performs an operation without his patient’s consent, except in cases of emergency, he commits an assault for which he is liable in damages. (Schloendorff v. New York Hospital, 211 N. Y. 125.) The second cause of action herein is for a direct trespass upon the person of the deceased, resulting in her death. It is a wrongful act resulting in death and the action is permitted under the statute.. (Decedent
The first cause of action is founded upon willful fraud, it being the claim of the plaintiff that the defendants knowingly misrepresented the facts to the deceased, inducing her to consent to an operation which resulted in her death. It might be argued that this is not an appropriate cause of action for a direct trespass to the person of another because such a cause of action would be one for assault. The claim of the plaintiff, however, is that the false representations proximately caused the death of plaintiff’s intestate. If so, it was a wrongful act resulting in death.
“ ‘ The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.’ ” (Laidlaw v. Sage, 158 N. Y. 73, 99.) Death does not ordinarily flow in a natural and continuous sequence unbroken by any new cause from the mere fact that a representation is made that an operation is necessary, although the representation is false. Eliminating the act of the patient in consenting to the operation, which consent might be held to be a natural sequence flowing from the representation of the physician that an operation is necessary, there is a new and independent act on the part of the physician when he actually performs the operation or succeeds in operating upon her for something else after having thus obtained her consent to some operation. Without the operation the fraud would have amounted to nothing so far as causing her death was concerned. Standing alone, therefore, it might be urged that the fraud was not the wrongful act which caused her death and that the fraud is merely a matter of evidence in the action for assault to demonstrate the absence of consent. Arguing in this manner it would seem that the first cause of action cannot stand alone . but is merged in the second cause of action.
On the other hand, there is a theory upon which we can hold that the willful and fraudulent misrepresentation of the physician, that an operation was necessary, when it was not, can be deemed to be a proximate cause of death following an operation thereafter had. It is, that the advice of a physician is of such a character as to invite the damage which was produced because of the superior knowledge of the physician upon which a patient ought to be permitted to rely, so that we may fairly reach the conclusion that if it were not for that advice of the physician, the operation would
My conclusion is that the first cause of action may be sustained as a separate cause of action and I, therefore, concur with Mr. Justice Kiley.
Order affirmed, with ten dollars costs and disbursements, with leave to the appellants to answer within twenty days on payment of such costs and of the costs awarded in the order appealed from.