Constance Garcia and Frank Garcia v. Helen F. Von Micsky, as Administratrix of the Estate of Lajos Von Micsky, Deceased

602 F.2d 51, 1979 U.S. App. LEXIS 13103

• Court: Court of Appeals for the Second Circuit
• Decided: July 17, 1979
• Docket: 639, Docket 78-7438
• Status: Published

Opinions

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment dismissing appellants’ complaint in a medical malpractice action following a jury trial before Pierce, J., in the Southern District of New York. The sole issue presented for review is whether the district judge erred in dismissing appellants’ separate cause of action for breach of warranty without submitting it to the jury.

In December 1973, appellant Constance Garcia, who had had several miscarriages and whose second daughter had been delivered prematurely by caesarian section, became pregnant again. In January 1974, she entered St. Luke’s Hospital in New York City for an abortion and sterilization by way of tubal ligation. The surgery was performed by Dr. Von Micsky, who died before this action was commenced.

Prior to the operation, Mrs. Garcia signed a written authorization for the proposed surgery which read in part as follows:

I understand that the proposed procedure is usually virtually permanent in its effect and usually irreversible, although it is possible that I may not be completely or permanently sterile after the operation. I have been informed of other methods of birth control.

The jury, in response to a specific interrogatory submitted by ,the trial judge, found that Mrs. Garcia had been informed that there was a possibility she might not be completely or permanently sterile following the operation. Moreover, appellants’ medical expert testified that obstetricians and gynecologists generally recognize the possibility that a tubal ligation may not be 100% effective in preventing future pregnancies.¹ Nonetheless, Mr. and Mrs. Garcia insist that they are entitled to damages from Dr. Von Micsky’s estate because Mrs. Garcia did become pregnant in 1975 and underwent another abortion.

Their claim in this Court is not based upon negligence or malpractice. That claim was rejected in the district court, and appellants do not contend that this was error. Appellants’ only contention is that the trial court erred in dismissing their cause of action for breach of warranty without submitting it to the jury. The warranty was allegedly made orally by Dr. Von Micsky to Mrs. Garcia some five months after the surgery had been performed. Mrs. Garcia could not testify concerning Dr. Von Mic-sky’s statements because the New York legislature, in its wisdom, has decided that a plaintiff may not testify about communications with a deceased defendant who cannot speak in his own defense. See C.P.L.R. § 4519. However, by a stroke of good fortune, Mrs. Garcia’s sister-in-law happened to overhear what Dr. Von Micsky said and testified in her behalf.

The sister-in-law stated that she accompanied Mrs. Garcia to St. Luke’s Hospital in June 1974 and remained in a waiting room, which served several doctors, while Mrs. Garcia visited Dr. Von Micsky in his office. After the visit, Dr. Von Micsky entered the waiting room with Mrs. Garcia and, in the sister-in-law’s hearing, told Mrs. Garcia “that she had nothing to worry about, that it was impossible for her, you know, to have any more children and to try to relax and to take it easy.”

The district judge, pointing out that the doctor’s statement was made long after he had completed his surgery and that it was not part of another contractual arrangement, held as a matter of law that it was not a warranty. This is the generally accepted rule and is the law of New York. Clegg v. Chase, 89 Misc.2d 510, 511, 391 N.Y.S.2d 966 (1977); Sard v. Hardy, 34 Md. App. 217, 239, 367 A.2d 525, 537 (1976), aff’d on this point and reversed on other grounds, 281 Md. 432, 451, 379 A.2d 1014, 1026 (1977); Herrera v. Roessing, 533 P.2d 60, 61-62 (Colo.App.1975); Wilson v. Blair, 65 Mont. 155, 167, 211 P. 289, 293-94 (1922).

To hold as appellants urge in this case would be to elevate the deceased doctor’s therapeutic reassurance of his patient to the status of a guaranty, made without contract or compensation and at the risk of absolute liability. This does not make good sense, either medically or legally. See Sard v. Hardy, supra, 281 Md. at 452-53, 379 A.2d at 1027; Herrera v. Roessing, supra, 533 P.2d at 61; Rogala v. Silva, 16 Ill. App.3d 63, 66-67, 305 N.E.2d 571, 574 (1973). The judgment appealed from is affirmed.

1 . Appellants’ expert testified that 99 per cent of the operations are successful. This appears to be a generally accepted figure. See Herring v. Knab, 458 F.Supp. 359, 362 (S.D.Ohio 1978).