Randolph v. City of New York

117 A.D.2d 44, 501 N.Y.S.2d 837, 1986 N.Y. App. Div. LEXIS 52165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1986
• Status: Published

Opinions

OPINION OF THE COURT

Ross, J.

In this appeal, the court is faced with the unfortunate dilemma that occurs when there is a direct conflict between a party’s religious beliefs, and the medical technique required to save that party’s life.

The issue presented is whether, in this wrongful death action, there is sufficient evidence of the negligence of the defendants, the City of New York (City), the New York Health and Hospitals Corporation (Health and Hospitals), and Dr. Elmer S. Foster (Dr. Foster), to support the jury verdict in favor of the plaintiff and against these defendants.

Plaintiff Howard Randolph (Mr. Randolph), who was a police officer, married Bessie Randolph (Mrs. Randolph), in July 1963. Between 1963 and 1974, Mrs. Randolph underwent at least two miscarriages and gave birth, all by Caesarean section, to three male children. Sometime late in 1974, Mrs. Randolph again became pregnant. Throughout the period of this pregnancy, Mrs. Randolph received prenatal care from Dr. Michael R. Cehelsky (Dr. Cehelsky), who was an obstetrician-gynecologist, at the Upper Manhattan Medical Group (Upper Manhattan), which is located in New York County.

Prior to the time that Mrs. Randolph entered the hospital to deliver, by Caesarean section, her fourth child, and to be sterilized by a tubal ligation, Dr. Cehelsky specifically informed her that on occasion, in connection with a Caesarean section, blood transfusions are necessary to save the woman’s life. It is undisputed that, in response to this statement of Dr. Cehelsky, Mrs. Randolph competently and unequivocally advised him that, in view of the fact that she was a Jehovah’s Witness, blood transfusions were not to be administered to her under any circumstances.

Subsequently, on July 16, 1975, Mrs. Randolph was admitted to Sydenham Hospital (Sydenham), located in New York County, as Dr. Cehelsky’s private patient. In 1975, the City owned Sydenham and Health and Hospitals operated, maintained and controlled it. A notation appears in Sydenham’s admission records that Mrs. Randolph was a Jehovah’s Witness and did not wish to receive a blood transfusion.

The members of Jehovah’s Witnesses have a fundamental belief "that blood transfusions are a violation of the law of God, and that transgressors will be punished by God” (In re Brooks’ Estate, 32 Ill 2d 361, 362, 205 NE2d 435, 436 [Sup Ct, Ill 1965]), since they will be denied "everlasting life” (In re Osborne, 294 A2d 372, 373 [DC App 1972]).

Shortly after her admission, Mrs. Randolph, who was then 45 years old, 5 foot 4 inches tall, and weighed in excess of 200 pounds, in preparation for surgery, was subjected to a number of blood tests. The results of these tests indicated that Mrs. Randolph had borderline anemia, which meant that the loss of blood to a person in her condition would be more dangerous than it would be to a person who was not anemic. Furthermore, it was estimated by the Sydenham medical staff that for a woman of her size and weight, Mrs. Randolph had a total blood volume of between 5,000 and 5,500 cubic centimeters (cc) (note: one quart of blood is equal to approximately 1,000 cc). Pursuant to Sydenham’s routine preparation for surgery, Mrs. Randolph’s blood was cross-matched, and two units of compatible blood, of which one unit contained whole blood and the other unit contained packed blood (note: each unit is equivalent to 500 cc of blood), were sent to the operating room in advance of the surgery.

On the morning of July 17, 1975, Mrs. Randolph was taken to the operating room. Among the medical personnel in that room was Dr. Foster, who was employed by Health and Hospitals in the capacity of director of anesthesiology at Sydenham, and who was assigned to administer the anesthesia to Mrs. Randolph. As the anesthesiologist, Dr. Foster, besides providing the anesthesia, also was responsible for monitoring Mrs. Randolph’s life support systems and supervising the administration of all fluids into her body, including blood.

Thereafter, Dr. Cehelsky performed a Caesarean section, and delivered a full-term normal baby girl at approximately 11:43 a.m. that day. However, Dr. Cehelsky encountered a serious problem as he tried to remove the placenta, since he found Mrs. Randolph was suffering from a condition medically known as placenta previa and placenta accreta. Placenta previa indicates that the placenta has grown over the opening into the uterus, and placenta accreta indicates that the placenta has grown into the wall of the uterus, so that it cannot be detached without removing the uterus. In order to remove the uterus, Dr. Cehelsky proceeded to perform a hysterectomy. While Dr. Cehelsky was carrying out that emergency procedure, a 1 to 2 centimeter laceration was inflicted in the urinary bladder, which caused a massive hemorrhage. By 12:00 noon, Mrs. Randolph had lost approximately 2,000 cc of blood, or about 40% of her blood supply.

According to Dr. Foster, considering the amount of blood she had lost, he would have initiated a transfusion of blood at noon, if Mrs. Randolph had not forbidden him to do so because she was, as mentioned supra, a Jehovah’s Witness. Due to this constraint imposed by Mrs. Randolph, Dr. Foster tried to deal with the situation by transfusing her with a crystalloid solution, consisting of dextrose and Ringer’s Lactate, so as to maintain her circulatory volume and give her a fluid substitute to compensate for the blood loss. Unfortunately, this technique did not prevent Mrs. Randolph from continuing to lose blood, as a result of the hemorrhage.

By 12:30 p.m., Dr. Foster became very concerned because Mrs. Randolph had by this time lost about 80% of her blood, and there was no evidence that the hemorrhage was being brought under control. In response to these facts, Dr. Foster asked someone in the operating room to contact the City Corporation Counsel and the Jehovah Witness Council for authorization to proceed with a blood transfusion. Nearly 15 minutes later, Dr. Foster was informed that the Corporation Counsel had given authorization for such a transfusion, and at 12:45 p.m. he began transfusing Mrs. Randolph with blood. Incidentally, the telephone call to the Jehovah Witness Council resulted in the message, "Call back after 1:00 P.M.”.

It is important to note at this time that the Trial Justice specifically charged "You are not to consider the failure of the defendants to transfuse Bessie Randolph until 12:45 P.M. on July 17, 1975, as an act of negligence.” We agree.

Even though the deceased was now receiving a blood transfusion, the rate of the hemorrhage was not controlled until slightly after 1:00 p.m. At approximately 1:15 p.m., Mrs. Randolph suffered cardiac arrest. Her chest was opened and the heart massaged. Despite these efforts, she was declared dead at 2:00 p.m.

The autopsy report attributes the cause of death to: "Massive hemorrhage during hysterectomy for placenta acreta [sic] discovered at term elective Caesarean section delivery. Laceration of urinary bladder.”

Following the death of his wife, Mr. Randolph commenced two wrongful death actions, which were later consolidated. These actions were based upon the alleged medical malpractice of Doctors Cehelsky and Foster. Named as defendants in these actions, in addition to the doctors, were Upper Manhattan, the City and Health and Hospitals. In advance of trial, plaintiff settled with defendants Upper Manhattan and Dr. Cehelsky for $350,000. In view of this settlement, the case proceeded to trial only against defendants the City, Health and Hospitals and Dr. Foster. Consequently, the only issue at trial was the alleged negligence of Dr. Foster, and through him, that of the City and Health and Hospitals.

At trial, in substance, the positions of the parties were as follows: On the one hand, plaintiff contended that the defendants were liable for Mrs. Randolph’s death, since Dr. Foster: (1) did not immediately begin a blood transfusion after Mrs. Randolph began to hemorrhage, even though she had refused to consent to receive blood on religious grounds; and (2) after he received authorization to transfuse Mrs. Randolph, he allegedly performed same negligently. However, on the other hand, the defendants contended that Mrs. Randolph’s death was attributable to Dr. Cehelsky’s negligence; and, that by the time that Dr. Foster received authorization to transfuse Mrs. Randolph, it was too late to save her life. Each side presented expert medical testimony, and defendant Dr. Foster was called as a witness by the plaintiff.

Before they retired to deliberate, the trial court instructed the jury that: "as a matter of law, I charge you that you are not to consider the failure of the defendants to transfuse Bessie Randolph until 12:45 P.M. on July 17, 1975, as an act of negligence”. Furthermore, the trial court submitted to the jury, as issues of fact, whether Dr. Foster had negligently transfused Mrs. Randolph after 12:45 p.m., and, if a negligent transfusion had been given, whether such negligence was the proximate cause of Mrs. Randolph’s death.

Following deliberation, the jury returned a verdict in plaintiff’s favor in the amount of $2,500,000, and found the percentage of fault attributable to these defendants to be 50%. Also, the jury found Dr. Cehelsky to be 50% liable, but since plaintiff, as mentioned supra, had settled with Dr. Cehelsky before trial, pursuant to General Obligations Law § 15-108, he was released from any contribution claim. Subsequent to the verdict, defendants moved to set aside the verdict, upon the grounds that: (1) it was against the weight of evidence; and (2) it was excessive. The trial court granted that motion only insofar as to direct a new trial on the issue of damages, unless plaintiff stipulated to a reduction of the award to $1,000,000, and the plaintiff so stipulated.

At oral argument before us, plaintiff’s counsel conceded that the defendants would not have been liable, if Dr. Foster had not undertaken to transfuse Mrs. Randolph, since he would have been merely following her instructions. We agree with this position. Under the law of New York, competent adults can limit the medical care to be given to them. In the case of Matter of Storar (52 NY2d 363 [1981]), now Chief Judge Wachtler of the Court of Appeals stated for the court, in pertinent part (at p 377), that: "In this State * * * there is no statute which prohibits a patient from declining necessary medical treatment or a doctor from honoring the patient’s decision. To the extent that existing statutory and decisional law manifests the State’s interest on this subject, they consistently support the right of the competent adult to make his own decision by imposing civil liability on those who perform medical treatment without consent, although the treatment may be beneficial or even necessary to preserve the patient’s life (see, e.g., Schloendorff v Society of N.Y. Hosp., 211 NY 125 * * * Matter of Erickson v Dilgard, 44 Misc 2d 27; Matter of Melideo, 88 Misc 2d 974; Public Health Law, §§ 2504, 2805-d; CPLR 4401-a).”

Public Health Law §§ 2504 and 2805-d specifically provide that a patient has a right to determine his own medical treatment and that right is superior to the physician’s duty to provide necessary care. The respondents’ argument that the defendant Dr. Foster was required to ignore Mrs. Randolph’s religious belief against blood transfusions, to assure support for her children, is without merit. The State’s interest in assuring parental support is satisfied where there is a capable surviving parent.

It is hornbook law that liability can only attach to the defendants if their alleged negligence was the proximate cause of Mrs. Randolph’s death (Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 951-952 [1978]; see also, Sheehan v City of New York, 40 NY2d 496, 501 [1976]; and Rivera v City of New York, 11 NY2d 856, 857 [1962]). In the instant case, proximate cause means that the plaintiff must present sufficient evidence to support the reasonable inference that Mrs. Randolph’s death resulted as a natural and probable consequence of the blood transfusion given by Dr. Foster (Saugerties Bank v Delaware & Hudson Co., 236 NY 425, 430 [1923]; Bolsenbroek v Tulley & Di Napoli, 10 NY2d 960 [1961], affg 12 AD2d 376 [1st Dept 1961]; Gralton v Oliver, 302 NY 864 [1951], affg 277 App Div 449 [1950]; Becker v Schwartz, 46 NY2d 401, 410-411 [1978]; Prosser, Torts § 42, at 244-249 [4th ed]).

The trial court came to the conclusion that sufficient evidence was submitted to support the jury’s verdict. Our reading of the record compels the conclusion that the trial court erred.

Unless the connection between the transfusion and Mrs. Randolph’s death is clearly visible to the jury, "expert medical opinion testimony is required to establish proximate cause and make out a prima facie case of medical malpractice” (Monahan v Weichert, 82 AD2d 102, 107 [1981]; Mortensen v Memorial Hosp., 105 AD2d 151 [1st Dept 1984]). Since we find that the relationship between Mrs. Randolph’s death and the blood transfusion was not readily apparent, expert medical testimony was necessary to furnish the linkage.

The plaintiff relied upon the testimony of both Dr. Sidney Nearenberg (Dr. Nearenberg), and defendant Dr. Foster to raise the inference that decedent’s life could have been saved, if defendant Dr. Foster had administered a negligence-free blood transfusion, even though it began as late as 12:45 p.m., at a time when decedent had already sustained a loss of more than three quarters of her blood supply.

Even though Dr. Nearenberg, who was the plaintiff’s expert in anesthesiology, testified that, in his opinion, defendant Dr. Foster infused too little blood at too slow a rate after 12:45 p.m., he conceded that, also in his opinion, by 12:30 p.m., approximately 15 minutes before the transfusion began, Mrs. Randolph’s condition had become irreversible and she could no longer be rescued, regardless of what steps were taken.

In fact, in reply to the question:

"In this case, at what time was it a matter of life as opposed to death when these things should have been done for her?”

Dr. Nearenberg, the plaintiffs expert, answered:

"Well, the correct steps should have been taken before 12 o’clock noon.” (Emphasis supplied.)

Dr. Foster testified that, although by the time he began the blood transfusion, decedent had "probably lost almost her entire blood supply”, he still "hoped” to save her. However, in contradiction óf Dr. Foster’s "hope”, he acknowledged, at his examination before trial, that, in order for Mrs. Randolph to have survived, she would have had to begin receiving blood no later than 12:30 p.m. Our examination of the entire testimony of Dr. Foster leads us to conclude that his testimony that he hoped to save decedent’s life was a prayer, rather than a professional opinion. Over 30 years ago, this court unanimously held in Strasberg v Equitable Life Assur. Socy. (281 App Div 9, 13 [1st Dept 1952]) that "[w]ords put in the form of an opinion uttered by a witness, even though he be an expert, cannot create an issue of fact when the factual basis for the opinion does not sustain his conclusion”. We can understand Dr. Foster’s frustration, in view of the fact that he was required to stand helplessly by, while Mrs. Randolph bled to death, as a result of her religious beliefs. This is particularly so, since he obviously had the skill and the means to properly transfuse her, and probably save her life, had he been permitted to do so, when first indicated.

The defendants also produced a medical expert, who was Dr. David H. Sherman (Dr. Sherman), and his specialty was obstetrics. Dr. Sherman testified, in pertinent part, that, in his opinion, Mrs. Randolph’s life could only have been saved if she received blood no later than 12:15 p.m., since "by noon, 17 minutes after the baby was born, she lost almost half of the blood in her body and clearly within the next ten or fifteen minutes, she lost more than half the blood in her body and nobody can live like that. She died because of that”.

After our review of the record, we find that the overwhelming medical evidence, as a matter of law, failed to support the inference that Mrs. Randolph could have survived, even if she received a proper blood transfusion at 12:45 p.m. Therefore, there was no issue of fact on which the jury could deliberate. We find applicable to the instant case, the following holding we made in Sumner v Extebank (88 AD2d 887, 889 [1st Dept 1982]), "the jury’s verdict [of liability against the defendants] could not have been reached upon any fair interpretation of the evidence. (Szabo v Super Operating Corp., 51 AD2d 466; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.09; McDowell v DiPronio, 52 AD2d 749.)”

The expert witnesses for both sides agreed that Mrs. Randolph’s life was "forfeited” due to irreversible shock, possibly as early as 12:30 p.m., and given the court’s charge, and we agree, that there could be no liability against Dr. Foster for failing to act prior to 12:45 p.m., we come to the inevitable conclusion that there could be no malpractice by Dr. Foster, as a matter of law, and as a matter of fact.

Considering the facts of this case, where Mrs. Randolph was doomed to die before Dr. Foster began his rescue effort at 12:45 p.m., we find inapplicable "[t]he case law * * * that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v Nambil Realty Co., 245 NY 256, 258; Glanzer v Shepard, 233 NY 236, 239; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 App Div 867)” (Parvi v City of Kingston, 41 NY2d 553, 559 [1977]). The reason for this finding is that regardless of the care, or lack of care, with which the blood transfusion was performed, it was too late to save the decedent’s life.

To this writer, to require a physician to stand by helplessly, while a patient is dying, and, when it is too late to save the patient, the doctor is instructed to proceed to use his skills to save her, and, to then attempt to apply liability for his actions, is just unacceptable.

Plaintiff moved in this court (M-6551) to dismiss the appeal of the defendant City, upon the ground that the City’s notice of appeal (notice) was defective. We have examined the City’s notice, and find it valid (CPLR 5520 [c]). Therefore, we denied that motion.

We find that the trial court erred in submitting the question of liability against the City of New York to the jury. There is nothing in the record to indicate that the Corporation Counsel had any duty to Mrs. Randolph, or that there was any breach of any duty that was the proximate cause of her death.

Accordingly, the judgment, Supreme Court, New York County (Eugene P. Bambrick, J.), entered November 9, 1984, after a jury trial, which, inter alia, is in favor of the plaintiff and against defendants the City of New York (City), the New York Health and Hospitals Corporation (Health and Hospitals), and Elmer S. Foster (Foster), in the amount of $500,000. (The jury verdict was initially $2,500,000; the trial court reduced it to $1,000,000 upon a posttrial motion to set aside the verdict; the final award of $500,000 was based upon the jury finding that the defendants City, Health and Hospitals and Foster were 50% liable), should be reversed, on the law and the facts, the judgment vacated and the complaint dismissed, without costs.