Opinion
October 29, 1962.
First and First, by Harry First, New York City, for plaintiffs.
Donald J. Fager of Martin, Clearwater Bell, New York City, for defendants Schneider Kroop.
Lawrence Eichner, New York City, for Jewish Chronic Disease Hospital, for defendants Richman, Chuakay Gokman.
This is a motion for dismissal of the complaint by the attorneys for the defendant, made at the end of the plaintiff administrator's non-jury case alleging malpractice causing death to an infant while she was undergoing the administering of anesthesia prior to surgery for correction of feet deformities. The defendants argued orally in favor of the motion, contending that the plaintiff failed to prove a prima facie case of negligence. Both sides have now submitted briefs. The plaintiff contends that no medical testimony is necessary to prove the prima facie case against all the defendants involved and besides the doctrine of res ipsa loquitor is applicable, that all he must do is to raise the inference of negligence and then the defendants have the duty to come forward and prove that they used the proper procedures and did not negligently cause the death of the plaintiff's infant child.
Plaintiff's attorney used only the testimony of a layman (the plaintiff administrator and father of the deceased infant), and notations in the hospital record to prove his case. The defendants contend that, therefore, the plaintiff-administrator had failed to prove a prima facie case of negligent malpractice and so move for the dismissal.
The Court finds that though in order to prove malpractice by showing the defendants failed to possess or apply the usual degree of learning and skill, testimony would have to come from an expert, that there is enough of an inference of negligence raised here by the hospital records (which are in evidence) "Clinical Abstract" and "Final Summary Record" showing that the operation had been delayed two months because of the presence of an upper respiratory infection, that the child was poorly nourished and weighed only sixteen pounds, though she was twenty-three months of age, and that there are notations of nasal discharges made in the "Nurses' Notes" on days just preceding the administering of ether by the open-drop method, including such a notation made 13½ hours before the child was taken to the operating room. The fact that such a child died before the operation had started, while ether was being administered, calls for the defendants to come forward and explain.
Expert testimony is not always needed to make out even a prima facie case of negligence (Benson v. Dean, 232 N.Y. 52, 53-56, 133 N.E. 125, 126). The testimony of the layman father and the notations in the record were enough to call forth the defendants to answer. The child was in their charge and their control to such an extent that they were required to exercise the highest professional skill and diligence to avoid every possible danger, for the law imposes duties upon men according to the circumstances in which they are called to act. In this case skill and diligence must be considered as indissolubly associated. The professional man, no matter how skillful, who leaves an essential link wanting or a danger unguarded in the continuous chain of treatment is guilty of negligence, and if omissions result in injury to the patient, the practitioner is answerable. (Keily v. Colton, 1 N.Y.City Ct. Rep. 439, NY Marine Court, General Term, 1882, as quoted by Wendel, J., in Wolfe v. Feldman, 158 Misc. 656, 657, 658, 286 N.Y.S. 118, 120, 121).
The doctrine of res ipsa lies here, for there was absolute supervision and control here by the defendants; death occurred before the operation, which might have been scheduled for an inopportune time, had even started; and the plaintiff-administrator can surely offer no explanation. Besides, the term is often used in malpractice cases where what is meant is that the evidence is clear enough to be comprehended by laymen without the aid of expert testimony. Whether the evidence is termed res ipsa or whether it is deemed to constitute prima facie proof is probably not important, for the general rule that an attempt to prove acts of negligence operates as a waiver of the right to rely on the res ipsa inference seems to be largely ignored in malpractice cases. The result under either doctrine is that a non-suit or directed defendants' verdict is avoided and the issues of fact are left for the jury. (N.Y.L.J. 8/23/61, page 4, col. 2). Res ipsa is applicable, for otherwise it would be impossible for a plaintiff ever to recover in such a case, since the facts are entirely within the knowledge of the persons attending the patient. (Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258).
When the very nature of an act or acts complained of bespeaks of improper treatment and malpractice, and if the defendants chose to justify their acts as proper treatment, they are under the necessity of offering evidence to that effect. (Hammer v. Rosen, 7 N.Y.2d 376, 380, 198 N.Y.S.2d 65, 67, 165 N.E.2d 756). A protection for a patient is the recognition by the Courts that often a jury will be able to comprehend negligent treatment even without a physician pointing the same out to them. (N.Y.L.J. 8/23/61, Page 4, col. 4). The increasing use of res ipsa loquitur exemplifies the growing recognition of the Courts of the special obligations which arise from particular relationships. Where the particular defendant is in a position of some special responsibility toward the plaintiff or the public, the doctrine is designed to protect the dependent party from unexplained injury at the hands of one in whom he has reposed trust. In an integrated society where individuals become inevitably dependent upon others for the exercise of due care, where these relationships are closely interwoven with our daily living, the requirement for explanation is not too great a burden to impose upon those who wield instruments of injury and whose due care is vital to life itself. Such a duty is now recognized and declared to arise in view of the special relationship such as exists between doctor and patient. (Klein v. Arnold, Sup., 203 N.Y.S.2d 797, 800, quoting Prosser in 37 Cal. Law Review (1949) 183, in Cho v. Kempler, 177 Cal.App.2d 342, 2 Cal.Rptr. 171, 76 A.L.R.2d 774).
Accordingly motion by defendants is denied. Trial to continue November 5th.