Opinion
February 16, 1971
In a wrongful death action, defendant appeals from so much of a judgment of the Supreme Court, Nassau County, entered March 21, 1969, as is in favor of plaintiff upon a jury verdict. Judgment reversed, on the law and the facts, and new trial granted in the interests of justice, with costs to abide the event. In our opinion, the proof adduced at the trial was insufficient from which to draw a reasonable inference that the alleged negligence of defendant's employees was a proximate cause of the decedent's death. Although plaintiff's expert witness testified that blood pressure and a cardiogram should have been taken during the decedent's initial examination and that the decedent should have been kept under observation for several hours, there was no testimony that such procedures would have led to a diagnosis of the deceased's condition or that a few hours of bed rest would have materially increased his chances for survival. The expert testified that if the decedent had been admitted to a hospital for complete bed rest, presumably for an extended period, his chances for survival would have been at least "50-50". However, there was no testimony that proper medical practice would have dictated such a course of treatment. Latham, Christ, Brennan and Benjamin, JJ., concur; Hopkins, Acting P.J., dissents and votes to affirm the judgment insofar as appealed from, with the following memorandum: The action is for wrongful death occurring as a result of malpractice. The decedent was brought to the defendant's hospital after he had fainted while working and had fallen to the ground. After a cursory examination, an intern diagnosed the decedent's condition as inebriation and told the decedent to go home. The decedent left the hospital and almost immediately fainted again in the parking area. The intern this time took the decedent's blood pressure (which was high) and made a diagnosis of a dysfunction of the cerebrum. The decedent died after a convulsion in the hospital within a short time after admission. As I understand the position of my brothers, they do not dispute that expert testimony produced on behalf of plaintiff established that defendant had been guilty of negligence in this case. Indeed, Dr. Clark, the witness for plaintiff, testified that the decedent should have been given a thorough examination, including the taking of blood pressure, an electrocardiogram and a blood count, all of which would have shown a serious physical condition, requiring further observation and investigation, and that, since the autopsy demonstrated that the cause of death was a ruptured aneurism of a cerebral artery which occurred in the parking area, this could have been avoided by the prompt admission of the decedent in the hospital in the first instance with complete bed rest. Dr. Clark stated that if a proper examination had been made, the decedent's chance of survival would have been "50-50". Although the negligence of defendant was established, my brothers conclude that as a matter of law the decedent's death was not sufficiently proved to have proximately resulted from that negligence. In my opinion, the question of proximate cause was for the jury. No one can say with absolute certainty that death would not have occurred, even if proper diagnostic procedures had been followed. But that does not exclude the liability of defendant, if expert testimony is presented that the defendant's negligence may have accelerated or contributed to the death. "It is, of course, well settled in this State that when there are several proximate or efficient causes contributing to death, the death may be attributed to any or all of those causes" ( Dunham v. Village of Canisteo, 303 N.Y. 498, 504). The jury could have relied on the testimony of Dr. Clark that without defendant's negligence the decedent had a good chance of survival. "The presence of several bases of proximate cause merely serves to emphasize that a factual question is present" ( Schuster v. City of New York, 5 N.Y.2d 75, 89).