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COURT OF APPEALS OF NEW YORK 1968.NY.41947 <>; 239 N.E.2d 368; 22 N.Y.2d 255 decided: June 5, 1968. STEPHANIE TOTH ET AL., INFANTS, BY THEIR GUARDIAN AD LITEM, STEVE J. TOTH, JR., APPELLANTS, ET AL., PLAINTIFF,v.COMMUNITY HOSPITAL AT GLEN COVE ET AL., RESPONDENTS, ET AL., DEFENDANT Toth v. Community Hosp. at Glen Cove, 28 A.D.2d 923, modified. Counsel Richard J. Burke and Louis Rothbard for appellants. Ralph H. Terhune and James M. McLaughlin, Jr. for Community Hospital at Glen Cove, respondent. Counsel Harold Shapero for Charles H. Hellmann and another, respondents. 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

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 ...

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