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decided: June 5, 1968.


Toth v. Community Hosp. at Glen Cove, 28 A.D.2d 923, modified.

Judges Burke, Breitel and Jasen concur with Judge Keating; Judge Bergan dissents and votes to affirm as to all defendants in a separate opinion in which Chief Judge Fuld and Judge Scileppi concur.

Author: Keating

 Stephanie and Jane Toth were born prematurely on the night of June 16, 1953 at the Community Hospital at Glen Cove, New York. From the moment of their birth they were dangerously ill. Their pediatrician, fearful for their lives, immediately ordered that they be placed in an isolette, a type of incubator, and that oxygen be administered to them. His written orders were to the effect that the infants should receive oxygen at the rate of 6 liters per minute for the first 12 hours, and thereafter at the rate of 4 liters per minute.*fn1

The theory behind this oxygen treatment was that maintenance of premature babies in an oxygen environment would sustain life and prevent brain damage. Shortly after the birth of the twins, a Cooperative Study of Retrolental Fibroplasia and the Use of Oxygen conducted for the National Institute for Neurological Diseases and Blindness indisputably established that the course of treatment was tragically mistaken. The study showed that, while the use of oxygen might mitigate brain damage, it did not reduce the mortality rate at all, and did cause retrolental fibroplasia (RLF), resulting in blindness in many infants. This was the result here. The twins were given oxygen for over 30 days -- Stephanie, the elder, until July 20 and Jane until July 27. Stephanie lost all useful vision in her left eye, while Jane developed RLF in both eyes and lost her sight completely.

Steve Toth, the children's father, as guardian ad litem, has brought this action against the pediatrician and the hospital, as well as against an ophthalmologist, who examined the children's eyes a month after their birth on July 17, claiming that the serious injuries sustained by his daughters were due to the negligence of the hospital's nursing staff and the professional malpractice of the doctors.

The claim against the pediatrician has two aspects. Mr. Toth contends, first, that the administration of oxygen was contrary to good medical practice in June, 1953. His second contention,

    --> which is also the basis of the claim against the hospital, is that the nurses failed to follow the pediatrician's orders concerning the amount of oxygen to be given the babies and that, in fact, 6 liters per minute of oxygen were constantly administered to the children for some four weeks after their birth rather than the prescribed 4 liters per minute. It is contended the nurses were negligent in not adhering to the pediatrician's orders, and the doctor was negligent in not discovering promptly that the oxygen dosage had not been reduced by the nurses as he had directed.

The case against the ophthalmologist also has a two-fold basis. First, he should have discovered the RLF during his examination of the babies on July 17 and, second, regardless of whether RLF had manifested itself by that date, the ophthalmologist should have made a recommendation concerning the advisability of continuing the oxygen treatment.

The trial court dismissed the complaint against the hospital at the close of the entire case on the grounds that the evidence did not show that 6 liters per minute had been continuously given and that the alleged deviation from the doctor's orders was the proximate cause of the children's loss of sight.

The case against the doctors was submitted to the jury. A reading of the trial court's charge, however, establishes that the only question the jury was asked to decide was whether the doctors had conformed to acceptable medical practice in their respective specialties. The jury returned a verdict in favor of the doctors. On appeal, the Appellate Division affirmed, one Justice dissenting, as to the hospital and the pediatrician.

On the issue whether the oxygen treatment was correct, the evidence was conflicting and the issue strenuously contested. The record supports the conclusion that while it was well recognized by June, 1953 that there was a risk of RLF in the oxygen therapy and many physicians and institutions were already convinced that the oxygen therapy was either useless or not worth the risk of RLF involved, there were many reputable institutions holding the opinion that the oxygen treatment was necessary or at least a worthwhile risk. There was, therefore, ample evidence to support the jury's finding that the defendant pediatrician, who viewed the oxygen treatment as a necessary calculated risk, had acted in accordance with acceptable medical practice. Consequently, on this question the jury's verdict must be deemed conclusive, and the issue of acceptable medical practice may not be submitted to the jury on a new trial.

Nevertheless, there still remains open the question whether the case against the hospital should have been submitted to the jury and whether it was error for the trial court to refuse to charge the jury, as requested by plaintiff, that the pediatrician might be found negligent in failing to ascertain that his orders were not being followed by the hospital staff.

Plaintiffs argue that this theory of liability is independent of whether or not there was an established medical opinion at that time with respect to the treatment of premature infants with oxygen. Even if it were not definitely established that the oxygen treatment was improper, the pediatrician, the plaintiffs argue, can be held liable for not noticing the deviation from his orders by the hospital nursing staff.

While the issue is not as simple as plaintiffs paint it, we do conclude that this second theory of liability should have been submitted to the jury.

At the outset, defendants assert that there is no evidentiary basis to support plaintiffs' theory. For example, it is stated that there is no showing that 6 liters per minute of oxygen were continuously administered to the children. We cannot agree.

Briefly, the evidence shows that not once before July 17 do the nurses' notes record 4 liters as being given, whereas on 10 occasions the nurses' notes contain statements that 6 liters were being given. The defendants' position is that the prescribed 4 liters were given. Their explanation for the fact that there is no reference to 4 liters in the nurses' notes is that the doctor's written orders were what they denote as a "standing order" which "under sound hospital practice did not require the nurse, following the expiration of twelve hours, to note that the oxygen flow was reduced to 4 liters but did require her to note a deviation from the order, namely, the use of 6 liters". (Brief of defendant doctors, pp. 5-6.) Thus, whenever 6 liters were given, the increase was required by a deterioration or some special condition. Otherwise, at all other times, 4 liters were administered as shown by the notations "continuous" and "constant" in the nurses' notes. This account does not satisfactorily explain the contrary indications of the hospital records. On at least three occasions the words "continuous" and "constant" or abbreviations for these terms are used although there can be no doubt that 6 liters of oxygen were then being furnished. Moreover, if it were true that, every time 6 liters of oxygen are recorded in the nurses' notes, there was some special reason for doing so, one must conclude that the course of treatment had no continuity or rationale behind it. When serious symptoms, such as difficulty in breathing, appeared, no increase in the oxygen flow is shown yet, for relatively trivial conditions, the flow was stepped up. Without dwelling any further on the evidence, these facts suffice to establish that a jury could reasonably find that the twins received 6 liters of oxygen throughout.

Likewise, a question of fact exists as to whether 4 liters per minute of oxygen, as opposed to 6 liters, would have materially reduced the likelihood of RLF or the severity of the injuries. The issue of causation in medicine is always difficult but, when it involves the effect of a failure to follow a certain course of treatment, the problem is presented in its most extreme form. We can then only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences.

In the case of RLF, the Cooperative Study supports plaintiffs' position. A conclusion of that investigation was that an increase in oxygen concentration from 35% to 50% did not increase the incidence of RLF in single births but, in the case of multiple births, the rate was at least doubled if the oxygen was administered over an extended period of time -- approximately 12 days. The integrity, reliability and impartiality of the report entitles it to be considered of substantial probative value on the issue of causation. Although the question is indeed a close one, the scientific investigations and the testimony in the record are sufficient to create an issue of fact for the jury on the issue of proximate cause.

Since there is sufficient evidentiary support for plaintiffs' theory, we come then to the critical question which is the soundness of this alternative theory of liability. Defendants do not claim that good medical practice did not require the pediatrician to check to see if the nurses had followed his orders and to learn of any constant supply of excessive oxygen to the infants within a day or so (Louisell & Williams, Trial of Medical Malpractice Cases, pars. 2.21; 8.05). The doctor here was visiting the children every day and in fact he maintained in a pretrial deposition that he had checked the flow meter of the isolette on each visit and that 4 liters had been given throughout. Under these facts, there is no question here of imposing an unreasonable burden of supervision on the doctor.

The true thrust of the pediatrician's argument is that he contests the materiality of any question of medical supervision. His position is that, although the jury was not specifically asked to decide whether a straight 6 liters of oxygen were acceptable therapy, in finding for him the jury necessarily had to find that 6 liters were acceptable because the evidence established that at Bellevue and other hospital nurseries they were using 60% or more oxygen. Thus, had he ordered a straight 6 liters he could not be held liable. Therefore, the argument concludes, there is no basis for a holding that he was negligent in not noticing that the oxygen had not been reduced.

The law generally permits the medical profession to establish its own standard of care. Although a plaintiff in a medical malpractice case does not always require expert testimony to establish a prima facie case (Benson v. Dean, 232 N. Y. 52; Meiselman v. Crown Hgts. Hosp., 285 N. Y. 389; Hammer v. Rosen, 7 N.Y.2d 376), evidence that a physician conformed to accepted community standards of practice usually insulates him from tort liability (Benson v. Dean, supra, p. 58; Prosser, Torts [3d ed.], p. 168; see, also, McCoid, Liability of Medical Practitioners, 12 Vanderbilt L. Rev. 549, 605 ff). There is, however, a second principle involved in medical malpractice cases. Having its genesis in the reasonable man rule, this principle demands that a physician should use his best judgment and whatever superior knowledge, skill and intelligence he has (Prosser, op. cit., p. 164). Thus, a specialist may be held liable where a general practitioner may not. The principle has been accepted by the Restatement of the Law of Torts (Restatement, 2d, Torts, § 299A, comment c ; § 289, subd. [b] and comment m ; § 299, comment f ; see, also, Harris v. Fall, 177 F. 79; cf. Note, Duty of a Manufacturer to Discover Unforseeable Common Uses of His Product, 66 Col. L. Rev. 1190, 1192-1193). The necessary implication of this latter principle is that evidence that the defendant followed customary practice is not the sole test of professional malpractice. If a physician fails to employ his expertise or best judgment, and that omission causes injury, he should not automatically be freed from liability because in fact he adhered to acceptable practice. There is no policy reason why a physician, who knows or believes there are unnecessary dangers in the community practice, should not be required to take whatever precautionary measures he deems appropriate.

For example, a physician believes that a course of treatment is highly dangerous. Using his expertise and exercising his best judgment, he decides that certain steps can safely be taken to minimize the risks. However, through carelessness, he omits to take the necessary safeguards. As a result, injury occurs. We see no justification for the position that, as a matter of law, because other reputable physicians did not think the precautions necessary and did not view the treatment actually given as improper, there may be no tort liability. It is not unreasonable to impose upon a physician, who believes that added precautions are necessary, the obligation that he act diligently in taking the necessary safety measures. This conclusion is nothing more than an application of the rule that a physician should at all times use his own best judgment and care.*fn2

It was well known in June, 1953, and the pediatrician here admittedly was aware of the fact, that the use of oxygen entailed the risk of RLF. It, therefore, made sense for a physician to seek to avoid prescribing any more than the minimum amount of

[22 N.Y.2d 255 Page 264]

    --> oxygen necessary to accomplish the desired purpose of preserving the life of the child. The pediatrician here testified that "[in] extreme distress it was an accepted method to give the 6, and if a baby was going into fairly even keel, to keep it at 4". From this statement and his other testimony before and during trial, a jury could find that the pediatrician believed that his orders represented a balance between the benefits to be gained from using oxygen and the danger of possible blindness. If the jury made such a finding, then it could reasonably hold the pediatrician responsible for failing to take note of the omission of the nurses to make the ordered reduction because the doctor's knowledge of the risks involved in using oxygen in excess of the prescribed amount should have alerted him to the need for greater diligence.

Thus, there was sufficient evidence to establish every element of plaintiffs' second theory of liability as reflected in their fifth request to charge. To summarize, a jury could find, although, under the facts here, it certainly would not be compelled to do so: (a) that 6 liters of oxygen per minute were given the children continuously; (b) that, had the pediatrician's orders been followed strictly, the RLF would not have occurred or the consequences would not have been as severe; (c) that the doctor had opportunity to discover the deviation, but did not do so; (d) that there was general knowledge that there was a danger in the excessive use of oxygen and that the doctor was aware of this knowledge and (e) that his written orders were made with a view toward minimizing that risk. If the jury so found, it could properly find that the doctor's failure to assure that his orders were carried out was negligence.

With respect to the hospital, there can be little dispute that the plaintiffs made out a prima facie case when they introduced substantial evidence to establish that the nurses had not conformed to the pediatrician's orders. The hospital's principal argument that the dismissal of plaintiffs' case against it was proper is also that the treatment actually given conformed to the then existing accepted standard of care and that this standard included the administration of concentrated oxygen.

Insofar as the hospital is concerned, whether the administration of oxygen was proper or not is completely immaterial. We are not here dealing with a matter usually left by a physician to the discretion of the hospital staff. Rather involved here is a situation where the attending physician gives direct and explicit orders to the hospital staff. In such cases, nurses are not authorized to determine for themselves what is a proper course of medical treatment. They may not invade the area of the physician's competence and authority to overrule his orders. To illustrate, no one would argue that, because at Bellevue oxygen was given, the nurses here might administer it if none had been ordered. Similarly, the nurses could not with impunity fail to give oxygen if directed to do so even if some institutions never used the oxygen therapy for premature infants.

The primary duty of a hospital's nursing staff is to follow the physician's orders, and a hospital is normally protected from tort liability if its staff follows the orders.*fn3 Nevertheless, if the doctor's orders are to be a hospital's shield from tort liability, it cannot at the same time maintain that a deviation which causes injury cannot be a basis for tort liability because other physicians or medical institutions might consider the treatment actually given as acceptable. More important than the question of logical consistency is the issue of social policy. There is every reason to encourage the hospital staff to carry out diligently the doctor's orders while there are no countervailing considerations which would justify relieving the hospital from tort liability for failing to do so.

In the case at bar, if it were established that the pediatrician's orders were contrary to sound medical practice, the hospital would without question and quite rightly deny liability on the basis that it in good faith simply carried out the pediatrician's orders. By the same token, we believe it was error to preclude the jury from finding the hospital negligent if they should find there was a deviation which was the proximate cause of the twins' injuries. At no time was it claimed by the hospital that authorization had been given either by the pediatrician or the standing orders of the premature nursery to give 6 liters of oxygen continuously. It follows that the case against the hospital should not have been dismissed.

    --> With respect to the ophthalmologist, plaintiffs claim error in the trial court's failure to charge that this doctor could be found liable for failing to make a recommendation concerning the continued use of oxygen. We conclude that the failure to charge was not prejudicial. Although this doctor was also aware of the RLF controversy, there is no evidence to indicate that he thought 4 liters of oxygen, which the children were then scheduled to be receiving, were particularly dangerous. Thus, had he specifically recommended the continuation of the oxygen, he would have acted in accordance with acceptable medical practice.

The order of the Appellate Division should be modified so as to order a new trial against the defendants, Community Hospital at Glen Cove and Hellmann, with costs to abide the event, and otherwise affirmed, without costs.


Order modified by reversing and granting a new trial, with costs to abide the event as to defendants Community Hospital and Hellmann, and, as so modified, affirmed, without costs.

Bergan, J. (dissenting). Since the jury after 10 days of trial, in which the purported malpractice and negligence of the pediatrician Dr. Hellmann was exhaustively treated, found a verdict for the physician which has been affirmed at the Appellate Division, reversal in this court may rest only on an error of law.

The majority opinion finds as the sole ground for reversal error in a failure to submit to the jury a "second theory", whether this defendant could be found guilty of malpractice "for not noticing that his orders were not being followed by the hospital nursing staff".

There was no such "second theory" of liability in the sense it could be deemed a separable entity apart from the general charge of negligence and malpractice against Dr. Hellmann under the pleadings, the bill of particulars or the argument of the plaintiffs' counsel to the jury. There was proof that the nurses' notes may have shown departure from his orders as to the quantity of oxygen administered. Under some circumstances this might become a basis of liability but for reasons to be stated those circumstances do not exist here.

But assuming the jury could have found that Dr. Hellmann had not noticed that "his orders were not being followed" by the nurses and that this could become part of the basis of liability for negligence or malpractice, this was not tendered as a separate issue or "theory" by the plaintiffs. The complaint charged negligence against the physician in the broadest possible terms of malpractice. It said not a word about failing to check to see that Dr. Hellmann's orders were followed.

The two bills of particulars, amplifying the charges of negligence and malpractice, gave no hint of any such theory. And the long summation to the jury by counsel for plaintiffs made no mention whatever either of this failure to follow up orders, or this as a separable "theory of liability".

Therefore, the effect of checking the nurses' notes was one of many details of treatment which had occupied the jury for a period of 10 days in this trial to determine whether there had been negligence or malpractice. The record cannot be read to show it as a separate "theory". It was left by the plaintiffs undifferentiated from a mass of other material in the record in support of their single cause of action against Dr. Hellmann.

The plaintiffs' brief in this court states that "The jury could have found * * * that Dr. Hellmann, by reason of negligence, failed to discover or note the failure to follow his orders". But plaintiffs did not argue this before the jury; and in the light of an entirely adequate charge on negligence and malpractice by the Judge, there was no need for the Judge, in response to a request, to be more minute in subdividing negligence and malpractice for the jury than the plaintiffs had been in their argument to the jury.

The Judge's charge followed the classic form for malpractice and medical negligence. It was unexceptionable and, in fact, no exception was taken to it. Counsel, responding to the Judge's question, said: "No, I have no exception to the charge."

It is important, then, to see exactly what the Judge said in this legally correct charge:

"It is claimed here that the defendant, Dr. Hellmann, by his carelessness in departing from the approved medical practice of pediatrics in the area where he practiced, caused injuries to the plaintiffs. The fact that the oxygen caused the injury, which is readily conceded, does not make Dr. Hellmann liable. Before you can hold Dr. Hellmann liable for these injuries, you would first have to decide whether Dr. Hellmann, as a specialist in the field of pediatrics, considering all of the circumstances of the premature birth and their health at the time of the delivery, did what a physician practicing his specialty in June of 1953, possessed of the skill and knowledge of other pediatricians in the area, other men practicing that specialty in this area at that time, whether he did what they would have done under like circumstances.

"You may take into consideration whether or not such a physician, having the knowledge of men practicing the specialty in the area and following accepted medical procedures would have foreseen the probability of injury as a result of the use of oxygen. You would also consider whether or not such a physician would have taken into account the possibility fatality, the possible death of the infants, or other injury, if he had not followed the procedure. And if he were confronted with the choice of more than one procedure, whether a pediatrician, possessing the average skills of accepted medical practice in the area, would have done what Dr. Hellmann did in order to sustain the life of the children."

Since the jury was not being asked for a special verdict but was to return a general verdict on malpractice and negligence, no breakdown in details of the purported negligence was required from the Judge under the pleadings, the proof or the argument of counsel.

A Judge does not commit legal error because he declines to include detail in his instruction to the jury or to give emphasis to an argument of one side by stressing points which a party himself neglects to argue to the jury.

This is request No. 4: "If you find that Dr. Hellmann directed that after the first 12 hours the dosage of oxygen should be reduced from six litres to four litres, and if you find that the nurses' notes in the hospital charts disclosed that such orders were not being followed, and that the doctor failed to observe such nurses' notes over a period of approximately thirty days and to learn that his orders were not being followed, you may find such failure on his part to observe said nurses' notes and to learn that his orders were not being followed constituted negligence on his part and the failure to exercise the diligence required of him under the circumstances, and if you further find that the doctor's failure to observe that his orders were not being carried out caused or contributed to cause the development of RLF in the plaintiffs, or its development in a more severe form than would otherwise have developed, you may find a verdict against the doctor for such results of his negligence."

This is No. 5: "If you find that Dr. Hellmann believed that the continuous administration of oxygen to the babies at the rate of six litres per minute after the first 12 hours would be harmful to them, and that the dosage should be reduced to four litres per minute after the first 12 hours, and you find that the dosage was continued after the first 12 hours at six litres per minute instead of being reduced, and you further find that the doctor failed to ascertain that six litres were being administered after the first 12 hours for approximately 30 days, then under the circumstances disclosed by the evidence in this case you may find such failure by him to ascertain that fact to be not in accord with the accepted standards of care and diligence required of physicians, and if such failure on his part contributed to cause or to aggravate the injuries of either or both of the plaintiffs you should return a verdict against the doctor."

The denial to charge in the form of these requests was not unequivocal. The refusal was "except as already charged".

Each of these requests, it will be noted, involves the acceptance of complex and complicated combinations of circumstances, and deductions from combinations of circumstances, which no court should be asked to throw together to fill in gaps in the argument which counsel had not himself made to the jury.

There were 17 requests to charge made by plaintiffs. Presumably they were in writing and, since the summations and the charge were made on the same day, were in existence when counsel for plaintiffs made his summation.

If this kind of strategy succeeds, counsel could stand before a jury with detailed and argumentative requests in his pocket, omit to mention the subject to the jury, and then seek a charge on the subject overlaid with judicial emphasis which would fill in the vacant interstices in his presentation. The Judge had no such duty in this case and it is not reversible error for him to refuse to follow this strategem.

The plaintiffs' brief in this court states:

"The court had stated earlier during argument * * * 'we must assume that he [Dr. Hellmann] examined what the nurses were doing and that he was satisfied that they were carrying out his orders'. His refusal of plaintiffs' Requests numbers 4 and 5 was consistent with this unwarranted assumption that Dr. Hellmann just could not be negligent, and it effectively eliminated from consideration by the jury the very heart of the plaintiffs' claims against Dr. Hellmann."

The inference seems suggested that somehow the jury was told by the court that this was the court's assumption. But this statement was not in the presence of the jury, and, as it has been noted, there was no exception to the entirely proper general charge. No good ground exists in this record for reversal because of the limited refusal to charge in the form requested.

Nor could liability in any event have been predicated under this record on a failure of the physician to observe the nurses' notes on the quantity of oxygen given, and this would throw light on why plaintiffs did not plead or particularize this before the trial or argue it before the jury at the trial.

There was no proof that the variable quantities of oxygen actually administered to the infant plaintiffs as shown by the nurses' notes (a flow of 6 liters or of 4 liters) would have made any difference in the contracting of the disease.

Plaintiffs' experts, Dr. Kaessler and Dr. Josephson, testified it was contrary to customary practice to give any supplementary oxygen to the children regardless of quantity, and Dr. Silverman, defendants' witness, testified that the administration of oxygen for any prolonged period, whether 6 liters or 4, could produce RLF.

There is, thus, proof in the record that the administration of oxygen could cause the disease, but no proof that in the critical period of the first 10 days after birth any different consequence resulted from a quantity of 4 or 6 liters. Therefore, the nurses' notes on these two quantities could not become a basis of liability on this record.

For similar reasons the complaint against the defendant hospital was properly dismissed by the Trial Judge. There is, as the hospital argues here, "no evidence that the administration of 6 liters of oxygen at the times set down in the nurses' notes caused the disease".

The hospital's procedures, as well as those of the physicians, followed accepted standards of medical care in June and July of 1953. The proof was that the administration of supplementary

[22 N.Y.2d 255 Page 271]

    --> oxygen was followed in many of the leading hospitals at that time.

That later scientific discovery showed some other procedure should have been followed ought not to bring home a retroactive liability either to physician or hospital. The prime purpose of the procedure was to save the lives of the children; that later knowledge showed the serious side effects might have been avoided ought not spell out a liability under this record.

The order should be affirmed.

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