Opinion
October 28, 1970
Appeal from a judgment in favor of claimant, entered February 5, 1969 upon a decision of the Court of Claims, in the sum of $3,001.33 for alleged negligence with respect to the custody of Rosalie Davis. Claimant has cross-appealed on the grounds of inadequacy of the award. The claim alleges that the State was negligent in that Rosalie Davis, while a patient at Willowbrook State Hospital, gradually became blind commencing on or about January 1, 1964 until her removal by her parents from the hospital on May 22, 1964. When the claim was filed (May 23, 1966), Rosalie was blind, but in July of 1968, she was operated on for removal of cataracts and her vision was restored. Rosalie was admitted to the Willowbrook State Hospital on August 29, 1958, described at that time as being handicapped with Mongolism. The hospital records indicate that in 1961 the child was in the eye clinic because of a cataract of her left eye and chronic iridocyclitis, but that no therapy was then necessary. In 1962 or 1963, her mother first noticed that her vision in her left eye was failing. When she was removed from the hospital by her mother in May of 1964, Rosalie was unable to see "a banana held in front of her eyes". Her parents took her to a physician but his diagnosis does not appear in the record. Later that month the family moved to the south, returning to New York in 1968 when the case was reached for trial. Rosalie was then taken to the Long Island Jewish Hospital where the successful cataract operation was performed. The trial court framed two questions: "Did the State specialist's failure to operate on Rosalie's cataracts prior to her departure from Willowbrook State School constitute such a deviation from accepted medical practice as to become actionable negligence? If so, was such negligence the proximate cause of Rosalie's impaired vision during the four year period complained of?" The court answered the questions in the affirmative, awarding $3,000 damages, holding: "The Court does not substitute its own judgment for a medical evaluation. It finds on the evidence that the State was negligent in failing to follow the suggestion of its own doctors that surgery be undertaken if the child's physical condition warranted it. That prerequisite having been met, the operations should have followed. From the time of this recommendation until the patient's discharge over a month later, there is no evidence to show that the recommendation for surgery was discussed with the parents." Appellant contends that it was not negligent in failing to remove the cataracts prior to May 22, 1964, the date when Rosalie was removed from the institution. The record substantiates the State's position. The record contains no indication that an operation should have been performed before the cataracts had developed in both eyes. When Dr. Greenwood found cataracts in both eyes on April 17, 1964, there were several factors he had to consider before deciding to operate. Since the child had a cardiac condition, her ability to withstand the operation had to be determined. It was not until May 5, 1964 that a report was received that the heart condition did not militate against an operation. Furthermore, the child had been suffering from a lung condition. Hospital records on February 11 and March 20, 1964 indicate she was running a temperature of 104 and had congestion in her lungs. Doctor Greenwood also expressed concern that the child, being a Mongoloid, might tear off her bandages. He testified that Mongoloids sustain anesthesia poorly. For these reasons, he had reservations concerning the success of an operation. Claimant sought unsuccessfully, through the attending physician, Dr. Ronald J. Blitzer, to establish that an operation should have been performed in 1964 while Rosalie was still in the institution. He admitted that the question of when a cataract should be removed is one of medical judgment and the ultimate responsibility of the surgeon in charge. In our view, Dr. Greenwood's failure to operate prior to the date Rosalie was taken from the institution by her parents, does not constitute grounds for holding the State liable in negligence. The facts show that the earliest possible time the operation could have been scheduled was after May 5, 1964 and within 17 days from the date the infant was taken out of the institution. Claimant failed to establish the State's liability in view of the questionable general physical condition of the child, and the short period of time which elapsed between the decision to operate and the child's removal from the institution by her parents. Even if Dr. Greenwood's judgment was erroneous, it was, nevertheless, a medical judgment for which no liability against appellant can arise. ( Dennison v. State of New York, 28 A.D.2d 608, affd. 23 N.Y.2d 996, cert. den. 397 U.S. 923.) Nothing which appellant did or failed to do contributed to or affected the condition of the child's eyes. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.