84 A.D.2d 438 | N.Y. App. Div. | 1982
OPINION OF THE COURT
This appeal concerns the liability of the State of New York for its alleged failure to use acceptable medical procedures in the care and treatment of Richard Carl
The events leading to Larkin’s death are largely undisputed. On December 2, 1975 he went to the prison clinic complaining of a headache that started the night before. Dr. Vratislav Kejzlar, a graduate of a European medical school who was not licensed but permitted to practice in New York State pursuant to a statutory exemption (see Education Law, § 6526, subd 1), examined Larkin and made an entry in the medical records that Larkin had spasms in the back of his neck and a headache. He prescribed medication consisting of Roboxin, a muscle relaxant, and Darvon, an analgesic. On December 8 Larkin, complaining that he had “headaches for [the] last week or so”, was again seen by Dr. Kejzlar. He was given more Darvon and Orinade, an antihistamine. On December 12 Larkin, complaining of vomiting, was seen at the clinic by a physician’s assistant. An entry was made on his medical records that he had a history of ulcers. On December 19 Larkin was treated for urethritis, an unrelated condition. On December 21 Larkin went to the clinic where he stated that he had a headache and had passed out. His blood pressure, pulse and temperature were normal. A registered nurse prescribed Darvon and told him to report on sick call. On December 22 Larkin was again seen at the clinic complaining of a headache. A registered physician’s assistant prescribed Roboxin and Tylenol. On December 23 Larkin again went to the clinic with complaints of a stiff neck and pain. A registered nurse gave him Roboxin and
Claimant contends that the State failed to employ proper medical techniques or adequate medical personnel in the care, treatment and diagnosis of Larkin’s complaints and failed to exercise professional judgment in the diagnosis of his condition by simply treating him for headaches and releasing him time after time. The proof to support this claim of medical malpractice came from Dr. Charles Salamone, a qualified neurologist, who testified that berry aneurysms are treatable, that a severe headache, along with associated stiffness and neck pain and possibly vomiting, are the symptoms of a hemorrhaging aneurysm, and that the condition does not usually cause a neurological deficit. He said that altered consciousness or loss of consciousness “may occur immediately with the initial bleed or with subsequent leakage or bleeds, if the patient survives.” In his opinion the general physician should have realized, at least within the first week, that he was not dealing “with a simple muscle contracture [and] headache on the basis of the patient’s history, complaints and findings”; that the continuation and worsening of the headaches were significant; that good and accepted medical practice demanded either that Larkin be referred to a specialist such as a neurologist or a neurosurgeon or that a spinal tap to detect the presence of a hemorrhaging berry aneurysm be performed; and, that the treatment afforded Larkin was not in accordance with good medical practice.
The only proof that the State presented at trial consisted of Larkin’s prison and medical records and certain portions of the examination before trial of Dr. Kejzlar. Although Dr. Kejzlar, in his testimony, conceded that it would have been good and accepted medical practice to have referred Larkin
At the conclusion of the trial the State moved to dismiss on the ground that claimant failed “to prove a prima facie” case and established nothing more than a “misdiagnosis”. The court granted the motion but in doing so stated that it had observed the manner and demeanor of the witnesses and had reviewed all the evidence presénted. It found that the claimant submitted no proof at trial that “the doctor failed: (1) to possess a reasonable degree of learning and skill; (2) to use reasonable care and diligence in exercising his skill; (3) to exercise his best judgment in exercising his skills and applying his knowledge (Pike v. Honsinger, 155 N.Y. 201).” The. court held that the Attica medical staff was faced with a complicated medical problem and that the proof failed to show that the treatment accorded Larkin was other than “treatment based honestly and conscientiously on careful examination. Improper diagnosis honestly arrived at is an error of professional judgment for which the State cannot be held liable (St. George v State of New York, 283 AD 245, aff’d 308 NY 681).”
We construe the trial court’s determination as a dismissal, not because claimant failed to prove a prima facie case as a matter of law, but because claimant failed to prove on the entire record that the State was negligent in the medical treatment it accorded Larkin. However, whether the trial court dismissed the claim as a matter of law, or based its determination upon the conflicting evidence adduced at trial is of little moment (see Siegel, New
We recognize that “[t]he rule requiring [a doctor] to use his best judgment does not hold him liable for a mere error of judgment” (Pike v Honsinger, 155 NY 201, 210, supra), but we do not classify this case as one of improper diagnosis within the meaning of St. George v State of New York (283 App Div 245, supra). St. George involved an erroneous diagnosis of the true nature of a mental illness and the doctrine of that case does not apply to the case at bar. In this case the negligence, if any, lies not in an improper diagnosis, but in the failure to recognize the possibility of a hemorrhaging berry aneurysm from what the expert witness described as “classic symptoms”. The question is whether the failure to recognize the latent neurological condition constitutes negligence.
Our analysis of the evidence adduced at trial does not sustain the trial court’s resolution of the factual issues and its conclusion of nonliability on the part of the State.
Although Larkin’s headaches had persisted over this period of time and his symptomatology had increased and had become more severe, Dr. Kejzlar could find no neurological sign on December 26 and in his own words proceeded “in simple fashion”. The chronic and accelerating nature of the symptoms indicated that Larkin’s condition was more than transitory and demanded immediate diagnosis and treatment. It is no defense that the symptoms were common and could be caused by other ailments or that aneurysms are more prevalent in later life, since normal and prudent medical procedures dictate that available tests be used to clarify the cause of the symptoms. A spinal tap, which is the “ultimate test”, was not even thought of. The State merely treated Larkin for headaches and released him; it failed to exercise any professional judgment whatsoever (see Pigno v Bunim, 43 AD2d 718). At the very least, on December 26 Dr. Kejzlar had reason to doubt that he had the skill and experience to handle the case himself and a referral to a more skilled doctor, a neurologist or neurosurgeon, was called for (see Benson v Dean, 232 NY 52, 59; Homere v State of New York, 48 AD2d 422). We find in this record that no referral was made until the unconscious Larkin was sent to the hospital on January 3.
Dr. Salamone’s opinion that the failure to test or refer deviated from accepted medical practice was based on the undisputed fact that Larkin suffered from severe headaches and other associated symptoms from December 2 which continued unabated until his death. The opinion was not based on speculation and we find it to be credible (see Scott v Brookdale Hosp. Center, 60 AD2d 647).
So long as a physician remains within the bounds of accepted medical practice, he is immune from liability for
The overwhelming weight of credible evidence is that good and accepted medical practice required the State to test or refer Larkin. The State did neither; in fact, the State failed to exercise any professional judgment in this case.
“While the line between medical judgment and deviation from good medical practice is not easy to draw” (Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684), the only inference that can be drawn from the proof in this case is that the failure to refer Larkin to a specialist or perform a spinal tap by December 26, at the latest, deviated from good and accepted medical practice and constitutes malpractice. According to the unrebutted testimony, Larkin could have been saved any time prior to the “blowout” and surgery provided “at least a 75 per cent chance of survival” (cf. Kallenberg v Beth Israel Hosp., 45 AD2d 177, 179-180, affd 37 NY2d 719). We also note that the State did not refute the charge that the medication administered on December 25 for migraine headaches by nonauthorized personnel was a drug which adversely affected Larkin’s condition.
The trial court’s resolution of the factual issues and its conclusion of nonliability on the part of the State is not supported by any fair interpretation of the evidence (cf. Hale v State of New York, 53 AD2d 1025, supra). Accordingly, judgment should be granted in favor of claimant on
Dillon, P.J., Simons, Hancock, Jr., and Doerr, JJ., concur.
Judgment unanimously reversed, on the law and facts, with costs, judgment granted in favor of claimant on the issue of liability, and matter remitted to Court of Claims on the issue of damages.
. A berry aneurysm is an outpouching or ballooning of the wall of a cerebral artery.
. Dural is the outermost membrane covering the brain and spinal cord.
. Arachnoid is the membrane between the dural and the innermost (pia) membrane covering the brain and spinal cord.