Randolph v. City of New York

Ellerin, J. (dissenting).

There was sufficient proof in the record, upon which the jury could rely, to find that when the defendant Dr. Elmer Foster undertook to transfuse Bessie Randolph at 12:45 p.m. on July 17, 1975, Mrs. Randolph could have been saved. There was also sufficient proof that Dr. Foster was negligent in performing the acts he took at that time, and that such negligence was one of the proximate causes of Mrs. Randolph’s death. A jury verdict should be set aside only when "the verdict seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon 'any fair interpretation of the evidence.’ ” (4 Weinstein-Korn-Miller, NY Civ Prac ¶ 4404.09.) "For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, however, requires a harsher and more basic assessment of the jury verdict. It is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.” (Cohen v Hallmark Cards, 45 NY2d 493, 499.) Based on this standard, the jury verdict in favor of the plaintiff on the issue of the liability of Dr. Foster should not be set aside.

The background facts are thoroughly set forth in the majority opinion. However, the facts that are most crucial to our analysis here are those that relate to the treatment of Mrs. Randolph in the operating room at 12:45 p.m. and thereafter. The trial court, after thoughtful consideration of the ethical issues of Mrs. Randolph’s religious values, charged the jury expressly that it was not to consider the failure to transfuse Mrs. Randolph before 12:45 p.m., and that it must find in favor *54of the defendants if at 12:45 p.m. her life could not be saved. The court instructed the jury to hold Dr. Foster liable only "if you find that on July 17, 1975 at 12:45 PM, when Dr. Foster voluntarily undertook to transfuse Bessie Randolph, she could have been saved at that time and that the defendants acted in a negligent manner at that time, you may find against the defendants, if their negligent acts were a proximate cause of Bessie Randolph’s death.”

The majority relies heavily on the expert testimony in concluding that Mrs. Randolph’s condition was irreversible and her life "forfeited” before 12:45 p.m. and that no steps taken at that time could have saved her. However, the "opinions” of these witnesses, relied on by the majority, were mere isolated "single answers” rather than the totality of the testimony (Matott v Ward, 48 NY2d 455, 462-463) and were contradicted by other answers given by the same witnesses. Moreover, the objective facts testified to by these witnesses, upon which their opinions were based, provided a sufficient basis for the jury to find that Mrs. Randolph’s condition was not yet irreversible as of 12:45 p.m.

The treating anesthesiologist, the defendant Dr. Foster, testified as to his treatment of Mrs. Randolph and read her anesthesia record at trial. The decedent’s blood pressure prior to surgery was well within the normal range, with a systolic reading of 120 and diastolic reading of 70. Her systolic pressure rose to 125 at noon, drifted to 100 and slightly below from 12:05 p.m. to 12:20 p.m. and measured 95 at 12:25 p.m. It settled at "just below 90, well above 80” from 12:25 p.m. through 12:50 p.m. At the same time, Mrs. Randolph’s diastolic pressure remained at approximately 70 from 12:05 p.m. through 12:45 p.m. Thus, according to Dr. Foster, Mrs. Randolph’s blood pressure remained in the normal range for adult females and well above the point where irreversible shock would set in. Her blood pressure remained about the same from a little after noon to 1:00 p.m.

Prior to surgery, Mrs. Randolph’s pulse was between 80 and 90. It rose steadily throughout the operation, due to the rapid loss of blood, and reached 120 shortly after 12:00 p.m. But the pulse remained at that level from that point on until after 1:00 p.m. and, as Dr. Foster testified, never exceeded any rate which would be considered normal until the time she went into cardiac arrest at 1:15 p.m.

Dr. Foster also testified that the patient’s vital signs were *55still satisfactory at the time he began preparing for the transfusion. It was based on this factual data, and not any fleeting "hope” or "prayer”, that Dr. Foster stated that "he still hoped to save her”.

The plaintiff’s expert, Dr. Nearenberg, also testified that Mrs. Randolph could have been saved if proper measures were taken after 12:45 p.m. Relying on the data as shown in the decedent’s medical records, Dr. Nearenberg testified that she did not go into irreversible shock until sometime after 12:45 p.m. He pointed out that the patient possessed a very strong heart, which was still beating until 1:15 p.m. He, too, noted that her vital signs of blood pressure and pulse were still viable at the crucial time of 12:45 p.m. Thus, even though Dr. Nearenberg did state at one point that it "may have been too late” to save her, he did unequivocally testify that had the defendants not departed from accepted medical practice Mrs. Randolph would be alive today, and the totality of his testimony evidenced that her life was still being sustained at 12:45 p.m. and that she could be saved at that time.

The defendant’s expert, Dr. Sherman, focused on the negligent acts of the obstetrician-gynecologist, Dr. Cehelsky, in making the wrong incision and producing the lacerations which caused Mrs. Randolph to bleed so profusely. Nowhere in Dr. Sherman’s testimony does he indicate specifically whether or not the patient was still curable at 12:45 and whether any measures could be taken to save her after that time.

There being sufficient evidence before the jury that Mrs. Randolph could have been saved, the inquiry properly turns to whether defendant Dr. Foster was negligent in his treatment of Mrs. Randolph once he undertook that duty and whether his negligence was a proximate cause of her death.

The care that Dr. Foster employed once he was authorized to issue the transfusion was woefully inadequate. Mrs. Randolph had by all accounts lost 2,000 cc of blood by 12:00 noon and close to 3 to 4,000 cc by the time the transfusion began at 12:45 p.m. Yet, Dr. Foster did not order an electrocardiographic monitor, so vital to assess the heart beat at these critical stages, until 12:30 p.m. The fluids with which Dr. Foster had transfused her until that point were apparently not sufficient to compensate for her blood loss. Nevertheless, Dr. Foster who had by this time begun to make inquiries to obtain legal authorization for a transfusion, had only two units of blood on hand and did not order more. By Dr. Foster’s *56own testimony, Mrs. Randolph needed eight units at 12:30 p.m., and at 12:45 p.m., when he began the transfusion, he stated that she required 10 units of blood.

The expert witness, Dr. Nearenberg, elaborated on the standard medical techniques that should have been employed. Another access should have been opened to prepare for additional intravenous fluids. The blood bank should have been alerted for an early release of extra blood.

Hampered by his own negligent failures to act in preparation, once Dr. Foster began he did not transfuse the blood quickly enough. Dr. Foster administered only 500 cc of whole blood, in a manner in which it took 45 minutes to enter the body, and 500 cc of packed cells plasma at a rate so slow that it never fully entered her body by the time she was pronounced dead at 2:00 p.m.

According to the expert testimony, a wider and good sized catheter could have been used, through which blood could be administered at a rate of one unit every 10 or 15 minutes. Moreover, a pressure bag could be employed whereby the blood could be transfused at a much swifter rate commensurate with the emergency nature of the procedure. Considering the large amounts of blood that Mrs. Randolph had already lost, Dr. Foster was negligent in failing to deliver the transfusion as quickly as he could have and in large enough doses to sustain Mrs. Randolph’s life.

The jury properly found that Dr. Foster’s negligence was a proximate cause of Mrs. Randolph’s death. To establish proximate cause, the plaintiff must show that the defendant’s negligence was a substantial cause of the events which produced the injury. (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520.) Having presented sufficient evidence from which the jury could infer that Mrs. Randolph was still capable of being saved at 12:45 p.m. and that the negligence of Dr. Foster was a substantial factor in causing her death, the jury could make the factual determination that Dr. Foster’s negligence was a proximate cause. (Kallenberg v Beth Israel Hosp., 45 AD2d 177, affd 37 NY2d 719.)

We are mindful of the consequences of the doctor’s inaction, in respect of the patient’s religious beliefs, prior to 12:45 p.m. The hemorrhaging was caused by the acts of Dr. Cehelsky in lacerating the wall of Mrs. Randolph’s urinary bladder while making the incisions in performing the hysterectomy. The *57condition was considerably aggravated by the failure to immediately begin a blood transfusion. However, in requiring that defendant’s negligence be a substantial factor in bringing about the injury, the substantial factor need not be the only factor which produces the injury. (Dunham v Village of Canisteo, 303 NY 498; Mortensen v Memorial Hosp., 105 AD2d 151.)

While there was no duty on Dr. Foster to administer a transfusion before 12:45 p.m., as the trial court properly charged, once the defendant voluntarily undertook steps to treat Mrs. Randolph and began his performance of the transfusion, there is no doubt that Dr. Foster had a duty to perform with due care. (Parvi v City of Kingston, 41 NY2d 553, 559; Glanzer v Shepard, 233 NY 236, 239; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 App Div 867.)

Mrs. Randolph did not experience a drastic change in her condition until 1:15, when she suffered the fatal cardiac arrest, a full half hour after Dr. Foster commenced his administrations. There was sufficient evidence for the jury to make the factual determination that Mrs. Randolph’s condition was not irreversible at 12:45 p.m. The issue of proximate cause is a factual one, i.e., whether there was a substantial possibility that Mrs. Randolph could have lived but for the malpractice of Dr. Foster. (Kallenberg v Beth Israel Hosp., supra; see Kimball v Scors, 59 AD2d 984.) The jury having made that finding rationally, based on the facts adduced at trial, its verdict should not be set aside.

That we would affirm the jury’s verdict does not mean that we are insensitive to the moral dilemmas faced by doctors in the exigencies of an emergency situation such as existed here. Regardless of these ethical circumstances, however, once a doctor takes steps to assist a patient he assumes a duty to exercise his professional standard of care. If he violates that duty and his negligence helps cause the patient’s injury, then he may properly be found liable.

Murphy, P. J., and Kupferman, J., concur with Ross, J.; Milonas and Ellerin, JJ., dissent in an opinion by Ellerin, J.

Judgment, Supreme Court, New York County, entered on November 9, 1984, reversed, on the law and the facts, the judgment vacated, and the complaint is dismissed, without costs and without disbursements.