Smolen v. Pen Fa Lee

In an action to recover damages for medical malpractice and for lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Ruskin, J.), dated July 28, 1983, which, upon a jury verdict in favor of the defendant, dismissed the complaint. Judgment affirmed, with costs. We have examined the record and agree with the trial court that there was no expert testimony or other evidence presented at trial which could support a finding that defendant aggravated a preexisting condition as a result of his alleged negligent course of treatment of plaintiff. Accordingly, it was not error for the court to refuse to charge that defendant could be found liable for aggravating a condition for which plaintiff was predisposed. To the contrary, it would have been improper to instruct the jury on a theory of liability which could not be supported by the evidence (cf. Skelka v Metropolitan Tr. Auth., 76 AD2d 492). Plaintiffs’ theory throughout the trial was that defendant caused her schizophrenia. The testimony of Dr. Chodosh, a defense expert, that it was possible that Mrs. Smolen’s schizophrenia was “unmasked” by amphetamines and made easier to treat does not of itself make out a prima facie case of aggravation of an existing condition. [802] We have reviewed plaintiff’s remaining contentions and find them to be without merit. Accordingly, we affirm. Lazer, J. P., Mangano, O’Connor and Brown, JJ., concur.