Summary
In Hale v State of New York (53 AD2d 1025, 1025 [4th Dept 1976], lv denied 40 NY2d 804), the Court held that "[t]he theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge."
Summary of this case from Friedmann v. N.Y. Hospital-CornellOpinion
July 12, 1976
Appeal from the Court of Claims.
Present — Marsh, P.J., Simons, Mahoney, Goldman and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: To maintain an action for injuries or wrongful death sustained while under the care and control of a medical practitioner and/or medical facility, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice (Morwin v Albany Hosp., 7 A.D.2d 582, 584-585, and on other grounds 8 A.D.2d 911). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge (see, e.g., Dillon v Rockaway Beach Hosp. Dispensary, 284 N.Y. 176 [an electric light bulb left under the sheets by an attendant]; Phillips v Buffalo Gen. Hosp., 239 N.Y. 188 [application of scalding hot water bottle to a patient]). However, where it is the treatment received by the patient that is in issue, the more specialized theory of medical malpractice must be followed (McDermott v Manhattan Eye, Ear Throat Hosp., 15 N.Y.2d 20, 24; Pike v Honsinger, 155 N.Y. 201, 209-211; Morwin v Albany Hosp., 7 A.D.2d 582, 585, supra). Such medical malpractice theory is based upon three component duties which a physician owes his patient, i.e., (1) a duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of such professional knowledge and skill; and (3) the duty to use his best judgment in the application of this knowledge and skill (Pike v Honsinger, 155 N.Y. 201, 209-210, supra). The very nature of these specific duties requires, in most instances, that there be presented to the trier of the facts evidence from the testimony of conflicting experts (Morgan v State of New York, 40 A.D.2d 891, affd 34 N.Y.2d 709; Tobias v Manhattan Eye Ear Hosp., 28 A.D.2d 972, affd 23 N.Y.2d 724; Morwin v Albany Hosp., 7 A.D.2d 582, 585, supra). As in most cases involving the conflict of testimony, the findings of the trial court should not be disturbed unless it is obvious that the trial court's conclusion could not be reached by any fair interpretation of the evidence (Collins v Wilson, 40 A.D.2d 750, 751). Analysis of the conflicting evidence adduced at trial amply sustains the trial court's resolution of the factual issues and its conclusion of nonliability on the part of respondent State. Claimant incorrectly contends that the trial court improperly excluded his counsel's initially propounded question. We find no error. The question as posed was too speculative in form and claimant's expert witness was permitted considerable latitude in responding to the court's rephrasing of it.