Collins v. New York Hospital

— Judgment, Supreme Court, Kings County, entered October 27, 1977, after trial to a jury, modified, on the law, to vacate the judgment in favor of plaintiffs-respondents against defendant-appellant Massapequa Hospital and to dismiss the complaint against that party, and otherwise to affirm, without costs and without disbursements. Suit was brought against the hospital and treating physicians for malpractice in respect of the treatment given a youngster who suffered from what appeared to be a kidney ailment. Specifically, it was claimed that the hospital had failed to administer to the child a certain cystourethrographic test ordered by the defendants urologists. The jury exculpated the doctors, finding no cause against them, but brought in a verdict against the hospital. This apparent inconsistency would not have mandated reversal. However, the doctors had ordered the patient discharged from the hospital without waiting for the test in a matter of days following their order, thus sub silentio revoking the order for the test, and thereby diminishing its importance as a factor in diagnosis and treatment of the child’s condition. Indeed, there was expert testimony that the condition of the patient was congenital and of a type which did not become the subject of medical literature until several years after the hospital treatment. The child’s condition had actually improved, following antibiotic dosage, during the few days after the test was ordered, and the hospital to which he went after discharge delayed the test a few days further. The patient’s illness had existed virtually from birth. During this time, he had been attended by several doctors other than defendants urologists, and none of them had been able to achieve a diagnosis leading to curative treatment. The evidence at trial indicated that, in any event, great difficulty would be encountered in the test’s administration, a requirement of which was that the patient void while it is ongoing: a child is not ordinarily capable of performing this function on command. There was no evidence that the order for the test was deliberately violated. A special question was put to the jury as to whether it was malpractice and proximately causative of the child’s condition for the doctors to have failed to diagnose his true condition before his discharge; it was answered in the negative. This squares with the jury’s verdict in favor of defendants urologists. As the dissent states, "the record does contain evidence upon which the jury could find * * * the defendants urologists were liable in malpractice for permitting the infant’s discharge with knowledge that the voiding cystogram had not been performed”. The jury did, however, find to the contrary. Thus, says the verdict, the doctors did not commit malpractice by abandoning the test and discharging the patient without it. What was the hospital’s responsibility? On the one hand, it could not order the test on its own; only doctors could do so. The hospital could not contravene the doctors’ discharge order and sua sponte, keep the child in to perform the test. It was not shown that the brief period after the order was given during which the test was not performed, some 11 days, contributed to a worsened condition, or indeed that the condition was really worsened at all. The quoted testimony of Dr. Luchs set out in the dissent states merely that the diagnosis of the child’s congenital ailment would have come earlier, and then, guardedly, without certainty: "I don’t know where your lines would be drawn, but the damage is progressive, and the damage would not have progressed to that degree; perhaps it would have been slightly less, a lot less; that is difficult to say”. Even though at one point he stated categorically his opinion that a worsened condition resulted from failure to give the test, he actually never did say that anything significant did happen or could have happened by 874 reason of the 11-day delay between the order for the test and the child’s discharge. It is difficult, if not impossible to account for the jury’s apparently inconsistent verdict unless it be by reason of the court’s having charged at one point as to the necessity for proof of causal connection and at another point completely omitting to charge on the necessary causal link, and instructing only that the hospital is "obliged to follow a doctor’s orders and if * * * the hospital failed to carry out the doctor’s orders, then * * * you may find the hospital negligent.” While, viewed in its totality the charge was technically sufficient in instructing as to the necessity for evidence of causal connection, the omission so to charge at one point could easily have been confusing to the point of bringing about the verdicts claimed to have been inconsistent. On this record, malpractice was not found as to the urologists, and cannot be found as against the hospital. The verdict in favor of the urologists should stand; that against the hospital cannot properly be inferred from the evidence, and it should be reversed and the complaint dismissed. It must be noted that the dissent also calls for reversal, but in toto, and a remand for a new trial, even as against Doctors Gerber and Qualliotine. The former was an osteopath who had attended the child in an earlier stage; he was exculpated by the jury. The latter was completely out of the case by reason of settlement. Nor was the result actually inconsistent as a matter of law, for one verdict was not dependent on the other. The hospital’s liability is completely separate and apart from that of the urologists. This is not a case of derivative liability; a finding of malpractice on the part of the hospital for failure to follow a medical order does not derive necessarily from malpractice by the doctors. Thus, two of the cases cited in the dissent, Agoado v Cohen (234 App Div 37), and Goines v Pennsylvania R. R. Co. (3 AD2d 307, rearg den 4 AD2d 831), each resting on derivative liability by reason of respondeat superior, have no application here. Nor does Bessey v Driscoll (202 App Div 817), decided solely on a finding that counsel had consented to a full retrial based on inconsistency. Our holding in this case for reversal as to the hospital alone is based solely on the lack of a case of liability on the evidence before us. Concur — Lupiano, Markewich and Sullivan, JJ.