Opinion
Argued October 9, 1979
Decided November 20, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES F. NIEHOFF, J.
Joseph Kelner and Monica Risi Merrilli for appellants.
Arthur N. Seiff and Anthony L. Schiavetti for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Defendant, an obstetrician and gynecologist, unsuccessfully attempted to abort the pregnancy of plaintiff Mary Koehler. Claiming extensive emotional and psychic injuries, plaintiff commenced this malpractice action. At trial, the case was submitted to the jury on the theory that defendant, departing from his normal practice, had failed to use a sharp curette following application of a suction device. Alternatively, the jury was permitted to premise liability upon defendant's delay in ascertaining and notifying plaintiff that the pregnancy had not been terminated. Experts for the defense testified that use of either the suction method or the sharp curette would be in accord with customary practice; prevailing practice did not require that both procedures be performed. A verdict was awarded to plaintiffs, and the Appellate Division reversed.
It may well be that defendant, as indicated in his testimony, routinely followed procedures more demanding than those dictated by customary medical practice, and that a failure to adhere to these added precautionary measures in the circumstances of this case would amount to negligence (see, e.g., Toth v Community Hosp. at Glen Cove, 22 N.Y.2d 255, 262-263). But there is no evidence establishing that this omission would in any way cause or enhance the possibility of an unsuccessful abortion. Whether and to what extent use of a sharp curette might contribute to the success of the procedure is not a matter of common knowledge which a lay jury could decide in the absence of expert testimony (see, e.g., 530 East 89 Corp. v Unger, 43 N.Y.2d 776, 777-778). The proof elicited from defendant himself indicated that he used the curette to minimize postoperative complications. Neither he nor any other expert testified that the curette would facilitate the surgical procedure or increase the likelihood of success. Simply put, then, plaintiffs did not demonstrate that the failure to use a sharp curette was a cause-in-fact of the unsuccessful abortion (see, e.g., Prosser, Torts [4th ed], § 41).
The testimony of Dr. Krumholz does not alter this conclusion. As the medical evidence reveals, there is a distinction between an incomplete abortion — where the procedure is generally successful but vestiges of the fetus remain in the uterus — and an unsuccessful abortion. Dr. Krumholz' testimony was concerned with the incomplete operation. In such a case, use of a sharp curette might help to remove any remnants of fetal tissue which, even if not surgically removed, would normally be expelled by the body in due course. Nowhere did the witness even intimate that the curette could render successful an otherwise unsuccessful abortion. And plaintiff did not claim that the procedure had been incomplete; her theory was that the operation had been a total failure.
Finally, defendant's delay in notifying plaintiff of the failure of the abortion, while perhaps exacerbating any damage which flowed from the nonsuccess of the procedure, was not shown to be an independent cause of any of plaintiff's injuries or damages, including those of an emotional or psychic nature. In short, plaintiff simply has not established that her injuries resulted from anything other than the failure of the abortion, regardless of when she received notification. A contrary conclusion on this record, especially with regard to whether earlier notification would have prompted plaintiff to consent to a second abortion, could only be based on sheer speculation. Indeed, plaintiff testified that she could not have endured a second abortion, without any indication that prompt notification would have affected her decision.
I dissent for the reasons stated in the dissenting opinion of Mr. Justice JOSEPH A. SUOZZI at the Appellate Division, to which in response to the majority's memorandum I add the following observations.
As to the first cause of action, there is in the record sufficient evidence to take to the jury the issue whether defendant's failure to follow suction with use of a sharp curette caused or enhanced the possibility of an unsuccessful abortion. That evidence was presented through the testimony of Dr. Burton Krumholz, called as a witness for defendant, that the purpose of using a sharp curette after a suction curettage was "[t]o be assured that the pregnancy termination is not incomplete"; in defendant's affirmative response to the question "would you say that proper practice would well justify making sure by doing another step, namely, using a curette?"; in his affirmative responses to the question "Doctor, when you say scrape, is it intended that the sharp end, by a scraping or cutting process, will loosen and break off any of the contents of the wall of the uterus?" and, following exhibition of the sharp curette to the jury, to the question "So that, Doctor, whatever didn't get evacuated by the suction device you would expect would be loosened and scraped out in the manner that you demonstrated with the curette; is that right?"; and, finally, in the testimony of Dr. Stanley Birnbaum, called as an expert by defendant, that the purpose of scraping is "to feel it so that you can use your suction again if there's a significant amount". The majority's distinction between an incomplete and an unsuccessful abortion does not militate against my conclusion; the jury could have found based on the testimony of Drs. Krumholz and Birnbaum that defendant never used the sharp curette for if he had he would necessarily have discovered his lack of success.
As to the cause of action for emotional and psychic injury, the majority's position is that defendant's delay in notifying plaintiff of his failure was not an independent cause of such injury, though it may have exacerbated the damage arising from that failure. So to hold is to ignore the fact that had plaintiff been notified promptly there would, the jury could have found, have been no emotional or psychic injury arising from the failure because it would then have been possible since she was then in her first trimester, to repeat the suction curettage procedure successfully. By delaying notice for six weeks, notwithstanding his admitted knowledge from the pathology report of the absence of villi with all that that portended, defendant confronted plaintiff with the much greater risk, and much more difficult decision in view of her religious principles and cancerous physical condition, of a saline abortion. Of these conditions and principles defendant was fully aware, and his witness, Dr. Krumholz, conceded that fears such as plaintiff's should have been taken into consideration by defendant, even though not a psychiatrist.
As a wrongdoer, defendant is chargeable with all the suffering his act or failure to act caused, or substantially, contributed to causing, to plaintiff, even though plaintiff's pre-existing mental and physical condition made her more susceptible to such injuries (Owen v Rochester-Penfield Bus Co., 304 N.Y. 457; Dunham v Village of Canisteo, 303 N.Y. 498, 505). Plaintiff's position is similar to that of the decedent, Dr. Lewis, in Fuller v Preis ( 35 N.Y.2d 425). The jury found that Dr. Lewis' suicide was caused by brain damage incurred in an automobile accident. To defendant's argument that Lewis' suicide resulted from other causes, this court responded that the issue was for the jury, saying (at p 433): "Dr. Lewis' wife was paralyzed in the upper part of her body due to poliomyelitis and was suffering nervous exhaustion when he committed suicide. His mother had recently been diagnosed for cancer. It was for the jury to consider whether these dire facts, along with the other evidence, rendered remote or displaced his mental derangement as a substantial cause of the suicide. Put another way, the issue for the jury was whether the defendants' negligence substantially contributed to Dr. Lewis' death (Dunham v. Village of Canisteo, 303 N.Y. 498, 505). They did not have to find that it was the only cause * * * In finding that the brain damage was the proximate cause of the suicide, the jury reached a conclusion both legally and medically supportable". As in that case, defendant here would be entitled to put before the jury testimony intended to exclude plaintiff's pre-existing condition from the damage she suffered, but he cannot escape liability altogether (see, also, McCahill v New York Transp. Co., 201 N.Y. 221, 224).
There is, moreover, sufficient evidence to take the causation issue on this cause of action to the jury also: in Dr. Krumholz's agreement that there was a basis for fear of harm to the unborn infant in the unshielded X ray taken of plaintiff, and in Dr. Engel's testimony of psychoneurosis of which the delay of six weeks in telling plaintiff of the failure of the abortion was a competent producing cause. That plaintiff concluded at that juncture not to have the second abortion does nor foreclose the possibility that had she been told promptly while the suction curettage procedure was still possible, she would have had it and certainly does not make speculative the agonizingly different decision with which defendant's delay in informing her confronted her.
For the foregoing reasons, I would reverse the Appellate Division order, which reversed on the law, and remit the matter for its consideration on the facts.
Chief Judge COOKE and Judges JASEN, GABRIELLI and JONES concur in memorandum; Judge MEYER dissents and votes to reverse in an opinion in which Judges WACHTLER and FUCHSBERG concur.
Order affirmed.