Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision of the Workmen's Compensation Board which found causal relationship between a 1954 heart accident and decedent's subsequent death in 1959 due to cancer. The board found that on June 24, 1954, the decedent suffered a compensable heart injury for which compensation was paid. In July, 1956, he suffered an unrelated heart attack. In 1957 it was determined he was suffering from cancer of the right kidney with metastasis to the left lung. In December, 1957, he was admitted to the Francis Delafield Hospital where, after examination, it was determined that, notwithstanding his cardiac condition, an operation was imperative to prolong his life "if medical conditions remained stable". The record discloses that he was thereafter sent home to diet and rest and prepare for the operation which was scheduled for January 30, 1958. The attending physician's record shows that the claimant had agreed to the operation. He returned to the hospital on January 27 in preparation for the operation and on January 29 he suffered a pulmonary edema which resulted in such poor cardiac condition that the hospital staff postponed the operation indefinitely. A hearing was thereafter held concerning the claimant's disability and on December 8, 1958, the board decided "On January 28, 1958 while in a hospital for further study of the unrelated kidney condition he developed pulmonary edema. This condition resulted from the accident herein and caused total disability". There was no appeal from this decision which established that the pulmonary edema suffered in January, 1958, resulted from the original accident on June 24, 1954, and this appeal is, therefore, limited to the board's finding which decided "The medical evidence indicates that death was due to neoplasm, but had surgery been performed as planned, the decedent's life would have been prolonged." The records of the Francis Delafield Hospital show that at the time of the decedent's transfer from urology to medical service, the nephrectomy could not be performed because of the poor cardiac condition and that he was being sent home and returned to the medical service. At a hearing following the death of the deceased, his attending physician, who had continued to treat him from the original heart attack until his death, stated that in his opinion if the operation had been performed, the decedent's life would have been prolonged. He further stated, that it was this feeling that made the neurological department of Francis Delafield Hospital so enthusiastic about proceeding with the operative and postoperative therapy. The doctor also made a written report in which he stated that the doctors at the hospital felt that the patient would gain many years of survival if his heart could withstand the surgical procedure. When the attending physician was asked his opinion as to whether or not the operation would have prolonged the life of the deceased he stated "I do not feel that in view of past results and other results of urological departments with cancer of the kidney, with metastasis, this could be considered speculation." Any statement as to future prolongation of life is necessarily premised to some extent upon surmise or speculation because there is no certainty as to the life span of any person, even if in good health, for illustration, the proof offered in a death negligence case. In this instance it constituted substantial evidence, particularly when well-qualified medical men stated that it was their opinion, based upon experience, that the patient would gain many years of survival if his heart could withstand surgery. After the episode of the pulmonary edema, it was decided, due to his cardiac condition, that surgery was not advisable and the possibility of years of survival diminished. The records conclusively show that "the subsequent course of the patient was steadily downhill until he succumbed in March of 1959". While the factual situation is somewhat different, we have recently decided a case concerning a pre-existing physical condition which precluded surgical procedure and the resultant death, and affirmed the board's finding for the claimant. ( Matter of Lighter v. Freeman Sons, 14 A.D.2d 470.) Decision and award of the Workmen's Compensation Board unanimously affirmed, with costs.