Winik v. Jewish Hospital ( 1970 )

No opinion. Christ, P. J., Rabin, Munder concur; Hopkins, J., dissents and votes to reverse the judgment and reinstate the verdict for plaintiffs, with the following memorandum: Plaintiffs recovered a verdict in this malpractice action against defendant Farber. The claimed personal injuries of plaintiff Doris Winik arose out of an operation for the removal of a suspected malignant mass from her breast. At the trial plaintiffs produced evidence tending to establish that Farber, who performed the operation, did not remove the mass intended to be excised, but instead removed another mass which proved nonmalignant; hence, the evidence tended to establish that Mrs. Winik still retained the suspected malignant growth. Her treating doctor testified that the lump in her breast furnished reason for her anxiety concerning the malignancy; and another doctor, called by plaintiffs as an expert witness, testified to the same effect. In my opinion, the evidence was sufficient to support a verdict for plaintiffs and the verdict should not have been set aside by the trial court, Cancerphobia is a recognized ground for recovery in actions brought to recover damages for mental distress (Ferrara v. Galluchio, 5 N Y 2d 16). The error by defendant Farber in excising a mass not intended, together with the natural anxiety resulting from that error and the continued presence of the mass which in the first place had precipitated the operation, provided satisfactory evidence that plaintiff Mrs. Winik’s anxiety was not manufactured, but was genuine and entirely natural under the circumstances.