Midler v. Crane

Sweeny and Freedman, JJ.,

dissent in a memorandum by Sweeny, J., as follows: Because the jury’s finding that defendant departed from good and accepted medical practice in failing to monitor plaintiff for lupus was inconsistent with its finding that there was no such departure in failing to diagnose and treat her for that disease, I must dissent.

Plaintiff was referred to defendant, a board certified rheumatologist, by her gynecologist, Dr. Grossman, in October 2000. At that time, she complained of pain in her knees, wrists and ankles. After reviewing plaintiff’s lab results, defendant performed a urinalysis in order to check for possible kidney disease. The test results revealed normal findings, thus presenting no evidence of kidney disease. Defendant diagnosed plaintiff at that time with degenerative arthritis.

Defendant sent a letter to Dr. Grossman, dated November 6, 2000, in which he stated: “Laboratory tests indicate a positive ANA although patient lacks the necessary specific criteria for the diagnosis of lupus or connective tissue disease. Continued monitoring will be required in order to make a more definitive diagnosis should there be any change in her symptom complex.”

Defendant treated plaintiff for inflammatory arthritis in 2001 and 2002. He performed physical evaluations and blood testing, and continued to monitor plaintiff for signs of lupus. During this time he did not perform further urinalysis.

In October 2002, plaintiff saw Dr. Joel Curtis, an endocrinologist, with complaints of hair loss. Dr. Curtis attributed this condition to the type of shampoo plaintiff was using. As part of his examination, he conducted a urinalysis. The results were *577abnormal, and he instructed plaintiff to return to defendant for follow-up care.

Dr. Curtis testified at trial that he directed his secretary to send the abnormal urinalysis results to defendant. His secretary testified at her exam before trial that she believed she faxed all six pages of plaintiffs lab results to defendant.

In November 2002, plaintiff sent a fax to defendant advising him that she stopped taking her arthritis medication, she was feeling better, that her hair was growing back, and that her recovery was “a miracle.”

In early 2003, plaintiff made an appointment to see defendant, who conducted examinations on January 23 and 29. At those appointments, defendant performed a blood test and urinalysis. Based upon those test results and his examination, defendant diagnosed plaintiff with renal disease, pending the results of a biopsy to confirm his suspicion that plaintiff had lupus. He prescribed medication for plaintiff, and on January 29 he directed plaintiff to consult with a nephrologist.

On March 20, 2003, plaintiff sent defendant a fax stating that she wished to discontinue her Cytoxan medication because she was concerned about her hair loss. Plaintiff took this step despite the fact that she had been told that the Cytoxan would save her kidneys. Defendant then prescribed Imuran and Prednisone, which plaintiff self-tapered because of its effects on her face.

In June 2003, plaintiff was hospitalized for kidney failure and underwent five months of dialysis. In December 2003, she underwent kidney transplant surgery.

At trial, defendant testified that there are 11 criteria set forth by the American College of Rheumatology for a diagnosis of lupus. The presence of any four of those criteria indicates the patient has lupus.

The lab tests from plaintiffs first visit on October 2000 showed a high ANA and false positive syphilis test, which are two of the 11 criteria. Defendant’s diagnosis of inflammatory arthritis in February 2001 constituted a third criterion. Defendant acknowledged that he had a responsibility to continue to monitor plaintiff for the fourth criterion, which he stated he did by blood testing.

Defendant testified that he received a two-page fax from Dr. Curtis, but those pages were endocrine test results and did not contain any information regarding abnormal urinalysis test results. He also stated that until January 2003, plaintiff did not show any symptoms that would have necessitated further urinalysis.

*578Plaintiff testified that she called defendant a number of times to ensure he had received Dr. Curtis’s test results. She sent defendant a fax on October 30, 2002, asking him to call her after reviewing those results. In that fax, she stated: “Dr. Curtis informed me that. . . the cause of the problem is not related to the endocrine system. Could the problem of the hair loss have been the Minocin medication?” This is consistent with defendant’s testimony that he received only a two-page fax report concerning endocrine test results from Dr. Curtis. Neither plaintiffs fax nor the two pages defendant testified he received from Dr. Curtis mentioned anything about a urinalysis.

Plaintiff also testified that defendant told her to see an nephrologist on January 29, 2003, but she did not see one until she returned from her vacation to Hawaii on February 20.

Plaintiff’s experts testified that defendant should have performed frequent urinalyses because he should have suspected that plaintiff had lupus. They opined that blood testing, as defendant had been doing, was not the correct way to detect kidney disease. Moreover, plaintiffs expert rheumatologist testified that there are situations where a patient presents enough characteristic findings of lupus that the treating doctor need not wait until the fourth criterion presents itself in order to diagnose lupus. One expert stated, however, that the testing performed by defendant in June 2002 did not evidence any signs of kidney disease.

Defendant’s rheumatology expert testified that urinalysis was not required until January 2003, when plaintiff showed specific signs of kidney disease. He also testified that blood testing was appropriate, and there was no indication in the laboratory findings up to August 2002 that required urinalysis. He opined that had urinalysis testing been performed in the summer of 2002, the results would likely have been normal.

Defendant objected to the verdict sheet proposed by plaintiff, which required specific answers for multiple interrogatories. These interrogatories were based on two theories—one being the failure to timely diagnose lupus and the other being the failure to properly monitor plaintiffs condition, specifically by failing to conduct further urinalysis. Defendant argued that the failure to monitor and failure to diagnose were two overlapping theories and would result in inconsistent verdicts. He instead sought a verdict sheet asking whether defendant had departed from good and accepted medical practice in failing to diagnose lupus prior to January 2003. The court ruled that the two issues were “related, but I do think they’re separate” and submitted the plaintiffs proposed verdict sheet to the jury.

*579The jury found that defendant did not depart from good and accepted medical practice “in not diagnosing and treating lupus at any time prior to January 31, 2003” (interrogatory 1 [a]) and “in not diagnosing and treating . . . lupus nephritis at any time between October, 2002 and January 29, 2003” (interrogatory 3 [a]). The jury did find, however, that defendant departed from good and accepted medical practice in his monitoring of plaintiff, including not performing urinalysis tests between October 20, 2000 and January 29, 2003 (interrogatory 2 [a]) and that this departure was a substantial factor in causing plaintiffs injuries (interrogatory 2 [b]).

The jury also found that nonparty Dr. Curtis departed from good and accepted medical practice by not ensuring that defendant actually received the abnormal urinalysis results of October 2002 (interrogatory 5 [a]) and by not including those results in his consult letter of November 6, 2002 which was forwarded to Dr. Grossman (interrogatory 6 [a]), but that these departures were not a substantial factor in causing injury to plaintiff (interrogatories 5 [b]; 6 [b]).

As to plaintiff, the jury determined she was negligent in not returning to defendant’s office prior to January 23, 2003 after being directed to do so by Dr. Curtis in October 2002 (interrogatory 7 [a]), and further negligent when she did not consult with a nephrologist until February 24, 2003 (interrogatory 8 [a]) and that both instances of negligence were substantial factors in causing her injuries (interrogatories 7 [b]; 8 [b]). Plaintiff was further found to be negligent in discontinuing her Cytoxan medication (interrogatory 9 [a]) and in self-tapering her Prednisone medication in April and May 2003 (interrogatory 10 [a]) although the jury found this negligence was not a substantial factor in causing her injury (interrogatories 9 [b]; 10 [b]).

Where a jury’s responses to interrogatories “are inconsistent with each other and one or more is inconsistent with the general verdict,” the trial court’s options are to order either reconsideration by the jury or a new trial (CPLR 4111 [c]). These statutory alternatives are the only available options under those circumstances (Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 40 [1980]; Sobie v Katz Constr. Corp., 189 AD2d 49, 53 [1993]).

An examination of the jury’s answers to the interrogatories demonstrates an inconsistency that mandates a new trial. The jury’s finding in interrogatory 2 (a) that defendant departed from good and accepted medical practice in not monitoring plaintiffs condition, including not performing urinalysis testing from October 20, 2000 through January 29, 2003, is inconsis*580tent with its findings that there was no departure in diagnosing and treating plaintiff for lupus prior to January 31, 2003 (interrogatory 1 [a]) or at any time between October 2002 and January 29, 2003 (interrogatory 3 [a]). The finding that there was no departure in defendant’s failure to diagnose at any time covers the same period in which defendant was found to have departed from accepted practice in failing to monitor plaintiffs condition. Such monitoring is not merely “related” to the diagnosis question, as the trial court found, but is, as defendant argued, part and parcel of the diagnosis process. Indeed, plaintiffs experts opined that urinalysis was the only proper way to make an early diagnosis of lupus, i.e., before the disease had progressed so far as to have an irreversible impact on the patient’s kidneys. Thus, for the jury to conclude that defendant did not depart from accepted practice in failing to diagnose lupus at any time prior to January 2003, it could not have consistently found that his failure to conduct urinalysis testing in order to promptly arrive at his diagnosis was a departure from accepted medical practice during part of that time frame.

In addition, the jury finding that nonparty Dr. Curtis departed from good and accepted medical practice by not ensuring that defendant received the abnormal findings of the urinalysis conducted by him on October 3, 2002 (interrogatory 5 [a]) but that this was not a substantial factor in causing plaintiffs injury (interrogatory 5 [b]) is inconsistent with the findings relating to defendant. Dr. Curtis was found to have departed from accepted practice during the same period that the jury found defendant also departed from the standard in failing to monitor plaintiffs condition. Yet the jury inexplicably found defendant’s departure to be a cause of plaintiffs injuries while at the same time finding that Dr. Curtis’s departure was not. This inconsistency cannot be explained by a reasonable view of the evidence submitted at trial.

The interrogatories and issues here are strikingly similar to those submitted to the jury in McPhillips v Herzig (172 AD2d 427 [1991]). McPhillips involved theories of medical malpractice predicated, as here, on failure to diagnose and failure to monitor. The McPhillips jury found the defendant physician did not depart from good and accepted medical standards of treatment in failing to diagnose and treat the disease condition in question, i.e., diverticulitis of the sigmoid colon. However, it also found the defendant did depart from such standard in failing to perform a pelvic exam, which was a specific diagnostic test used to diagnose the plaintiffs condition. We held that the special verdict was “inconsistent [in] finding both that defendant was *581negligent in failing to do a pelvic examination and then responding ‘no’ to the question[:] ‘Was defendant negligent in failing to make a correct diagnosis and institute appropriate treatment ...?’” (Id. at 428.)

While the facts of McPhillips differ slightly, the principle remains the same. I cannot agree with the majority statement that in McPhillips “it was impossible for the jury to separate the failure to diagnose from the failure to monitor.” It is true that the malpractice in McPhillips occurred in one office visit, as opposed to here, where it took place over a period of time. However, both juries found the respective defendants liable for failing to conduct specific diagnostic tests, but not liable for failing to diagnose the condition that the test was designed to identify.

I do not dispute the majority’s conclusion that defendant had a duty to monitor plaintiff’s condition. I must take issue however, with the conclusion that “the jury could reasonably have viewed the failure-to-monitor theory as diverging from the failure-to-diagnose theory,” especially since, at the time of the first diagnostic testing, plaintiff exhibited three markers for lupus, a situation that was certainly serious enough to warrant further monitoring and testing, which was not done here.

Nor can I agree with the majority’s conclusion that the jury’s determination that Dr. Curtis’s negligence in not imparting to defendant the results of the urinalysis he performed on plaintiff is not inconsistent with its finding that such negligence was not a substantial factor in causing plaintiffs injuries. This conclusion assumes that defendant knew he only received a partial set of lab results. His testimony at trial was that plaintiff showed no symptoms warranting further urinalysis until January 2003; Dr. Curtis’s examination took place in October 2002, so defendant would have had no reason to assume that Dr. Curtis performed a urinalysis test. While the majority faults defendant for not making further inquiry into Dr. Curtis’s examination, based upon his testimony, it is apparent that he had no reason to make such inquiry.

In short, the verdicts are fatally inconsistent. As a result, the judgment should be vacated, the order denying defendant’s motion for a new trial should be reversed, and the motion granted.