Koehler v. Schwartz , 413 N.Y.S.2d 462 ( 1979 )

— In a medical malpractice action, defendant appeals from a judgment of the Supreme Court, Nassau County, dated October 28, 1977, in favor of plaintiffs, upon a jury verdict. Judgment reversed, on the law, with costs, and complaint dismissed. In May, 1972, defendant performed an abortion on plaintiff Mary P. Koehler (plaintiff) which failed, however, to terminate her pregnancy. She subsequently gave birth to an apparently healthy, normal baby girl. Prior to undergoing the abortion, plaintiff had had three operations for the removal of malignant growths. The abortion was recommended and consented to by plaintiff on the ground that hormonal changes during pregnancy could speed up and spread any melanoma remaining in her body. On the theory that defendant’s performance of the abortion procedure (suction curettage) and delay in notifying her that the procedure had failed to accomplish its purpose had not been in accord with proper practice, and that such malpractice had caused plaintiff injury in the form of mental and emotional distress (traumatic psychoneurosis, with obsessive anxieties, cancerophobia and depression), the jury found in favor of the plaintiffs. The judgment must be reversed and the complaint dismissed. Plaintiffs failed to establish by expert evidence that defendant had not performed the abortion in accordance with proper and accepted medical standards. They presented no expert medical testimony in their own behalf to counter the testimony of defendant’s experts, as well as of defendant himself (called on plaintiffs’ case), that the procedure was performed in accordance with proper and accepted practice. Although one might infer from the hospital record that defendant had failed to use a sharp curette in addition to a suction curette, despite his testimony that he always used both, one cannot go further and infer that the abortion would have been successfully completed had the sharp curette been used. Not only is this the type of case in which a jury of laymen is ill-equipped to determine the issue of negligence simply as an inference from the circumstances, thus rendering inapplicable the doctrine of res ipsa loquitur (see Pipers v Rosenow, 39 AD2d 240), but all of the expert testimony adduced indicates that the use of the sharp curette is purely a matter of choice, being merely an alternative procedure. There can be a failure to terminate a pregnancy despite its use since this is a blind procedure in which care must be taken not to perforate the wall of the uterus or scar its lining. The procedure is allegedly even riskier where, as here, the uterus was retroverted. Defendant was also found guilty of malpractice in failing to inform plaintiff prior to her regularly scheduled six-week visit, that the procedure had failed. Whatever the merits of this claim, it is clear that this delay cannot independently support an award of damages. It was not, in and of itself, a proximate cause of any of plaintiff’s emotional and mental distress. Titone, J. P., Gulotta and Martuscello, JJ., concur.