Schmeider v. Montefiore Hospital & Medical Center

— Judgment, Supreme Court, Bronx County (Bernard H. Herman, J.), entered April 1, 1985, on a unanimous jury verdict in favor of defendants, affirmed, without costs or disbursements. Upon review of the record, we find ample support for the jury verdict in favor of defendants in this medical malpractice action. The jury instructions, while hardly a model charge, do in their totality adequately set forth the sole basis for liability against Dr. Driscoll, namely, whether there was an error of judgment, amounting to malpractice, as a result of his decision to delay surgical intervention to close the rupture, based upon his opinion that the perforation might heal spontaneously, without any need to operate. Inasmuch as the jurors were instructed that this was the only issue to be submitted as to any malpractice by Dr. Driscoll, we disagree with the dissent’s conclusion that the first interrogatory in the special verdict was improper. Thus, this interrogatory, which posed the question of whether Dr. Driscoll had committed malprac [736] tice "in the medical and/or surgical treatment” rendered to the plaintiff, solely related to whether the doctor had negligently delayed the operation. As the court charged, this was "the only issue of alleged malpractice that I am submitting to you and that you are to consider and determine”. Viewed in that context, the interrogatory was neither confusing nor improper. We also disagree with the conclusion of our dissenting colleague that the trial court foreclosed plaintiff in the direct examination of his medical expert, Dr. Max. Tesler, on the issue of delay. The bill of particulars does not include, expressly or otherwise, any malpractice claim which makes any reference to delay by Dr. Driscoll in performing surgery. Contrary to the dissent, the bill is not "broad enough” to encompass and apprise the defendants of this claim. Nevertheless, in his direct examination, Dr. Tesler opined that the severity of the peritonitis did require a colostomy. Defendants’ objection was overruled, the court permitting the expert to express his view on that issue. While the dissent recites a limited portion of the medical opinion in the trial transcript, Dr. Tesler, in his testimony immediately prior to the cited segment, did refer to the hospital records as disclosing that, although there were symptoms of peritonitis four hours after the polypectomy, an exploratory laparotomy was not performed until six hours later, at 8:00 p.m. The dissent refers to the plaintiff as having thereafter "dropped” the subject, but, as far as appears, this was a matter of strategy by experienced trial counsel who, again for strategic purposes, had apparently elected not to proceed against Dr. Zimetbaum, the doctor who performed the initial procedure to remove the polyps. In any event, the record discloses that Dr. Tesler did state his opinion that plaintiff needed a laparotomy and a colostomy because of the presence of peritonitis and, plainly, counsel’s decision not to proceed further on direct examination was not the result of any ruling by the court. Although the dissent concludes that the court reversed its position after both sides had rested, the record reflects the contrary, that on the issue of delay, the Trial Justice advised counsel, "I never ruled it was no longer in the case”. Even assuming that the court did reverse itself, Dr. Tesler had already testified that, in his opinion, the operative procedure should have been performed sooner. In any event, since the issue of delay had not been raised in the bill of particulars or otherwise, this ruling, permitting the case to proceed to the jury on the issue, was favorable to the plaintiff and afforded [737] him greater latitude in making out a prima facie case against Dr. Driscoll than he was entitled to under the pleadings. While the dissent states it would have permitted plaintiff’s attorney to proceed further in his examination, counsel intentionally chose not to do so. Concur — Kupferman, J. P., Ross, Carro and Kassal, JJ.