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LUIS SURIA v. FELIX SHIFFMAN (02/19/86)

COURT OF APPEALS OF NEW YORK 1986.NY.42128 <http://www.versuslaw.com>; 490 N.E.2d 832; 67 N.Y.2d 87 decided: February 19, 1986. LUIS SURIA, RESPONDENT,v.FELIX SHIFFMAN, APPELLANT, ET AL., DEFENDANT, AND AVTAR S. DHALIWAL, APPELLANT Appeals, by defendant Shiffman as of right, and by defendant Dhaliwal by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 19, 1985, which modified, on the law and the facts, and, as modified, affirmed a judgment of the Supreme Court (Harold J. Hughes, Jr., J.), entered in New York County, awarding plaintiff $1,500,000 against defendant Dhaliwal, granting defendant Shiffman's motion for a directed verdict, and dismissing the complaint as against defendants Shiffman and Rish. The modification consisted of (1) reinstating the verdict against defendant Shiffman, (2) denying his motion for a directed verdict, and (3) directing a new trial on the issue of damages only, unless plaintiff stipulated to a reduction in the verdict to $800,000, in which event a judgment, as so modified, would be entered against defendants Shiffman and Dhaliwal in accordance with the jury's findings as to the relative responsibility and fault of the respective parties. Plaintiff so stipulated to a reduction of the verdict and the judgment was amended accordingly. Counsel Norman H. Dachs and Bonnie S. Kurtz for Felix Shiffman, appellant. Emilio Nunez and Alexander J. Wulwick for respondent. Chief Judge Wachtler. Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur. Author: Wachtler


Appeals, by defendant Shiffman as of right, and by defendant Dhaliwal by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 19, 1985, which modified, on the law and the facts, and, as modified, affirmed a judgment of the Supreme Court (Harold J. Hughes, Jr., J.), entered in New York County, awarding plaintiff $1,500,000 against defendant Dhaliwal, granting defendant Shiffman's motion for a directed verdict, and dismissing the complaint as against defendants Shiffman and Rish. The modification consisted of (1) reinstating the verdict against defendant Shiffman, (2) denying his motion for a directed verdict, and (3) directing a new trial on the issue of damages only, unless plaintiff stipulated to a reduction in the verdict to $800,000, in which event a judgment, as so modified, would be entered against defendants Shiffman and Dhaliwal in accordance with the jury's findings as to the relative responsibility and fault of the respective parties. Plaintiff so stipulated to a reduction of the verdict and the judgment was amended accordingly.

Chief Judge Wachtler. Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Author: Wachtler

 Opinion OF THE COURT

This action arises from a course of medical treatment initiated by plaintiff, a transsexual, who sought to have his breasts augmented. He testified that, in July and again in December 1974, defendant Shiffman injected silicone into both his breasts. By March 1975, his breasts became sore and red, and in December 1975, plaintiff returned to Shiffman for treatment of symptoms including severe pain, discoloration and lumps. Although Shiffman's treatments continued for approximately six months, they were unsuccessful.

Shiffman testified that plaintiff did not first consult him until December 1975, at which time his breasts had already been injured, and that he came only seeking treatment, not augmentation. Shiffman claimed he treated plaintiff until July 1976, but denied ever administering silicone injections. In September 1976, according to Shiffman, plaintiff revealed for the first time that his symptoms were caused by injections of mineral oil administered by a transsexual friend. Shiffman concluded there was nothing more he could do, and referred plaintiff to Dhaliwal, a plastic surgeon, who performed a bilateral subcutaneous mastectomy. Plaintiff testified he thought Dhaliwal was to perform only an "incision and drainage" and he did not consent to a mastectomy. Dhaliwal testified that he had fully explained the proposed procedure, its risks and consequences before obtaining plaintiff's consent.

On September 20, 1976, plaintiff, recovering in the hospital from the surgery and, according to his testimony, still unaware he had undergone a mastectomy, talked an attendant into unwrapping his bandages. Shocked by the severity of his wounds, he checked out of the hospital against medical advice, and later developed a wound site infection which required another operation.

At the close of proof, plaintiff argued that Shiffman committed malpractice when he injected silicone into his breasts in July and December 1974, that Dhaliwal committed malpractice in the performance of the mastectomy, and that Dhaliwal had improperly failed to obtain informed consent for the procedure.

The court's charge contained the following instruction on the issue of plaintiff's culpability:

"The defendants claim that the plaintiff was guilty of negligence, that is, the failure to use ordinary care in permitting some third party to inject mineral oil into his breasts. And in leaving the Boulevard Hospital shortly after the surgery performed by Dr. Dhaliwal against medical advice.

"Mr. Suria denies anyone injected him with mineral oil. The burden is on the defendants to prove that the plaintiff was negligent and that such negligence caused or contributed to plaintiff's injuries.

"Mr. Suria, as I say, was required to exercise reasonable care for his own health and safety. If you find that Mr. Suria failed to exercise such reasonable care either in having someone other than a licensed medical doctor inject a substance into his breast, or in failing to heed medical advice concerning the treatment to be followed, following surgery at Boulevard Hospital, then you may find that he was guilty of negligence.

"But, of course, if you find that the plaintiff did not permit some non-medical person to inject him with mineral oil, or if you find that a reasonable prudent person would have left Boulevard Hospital on the 20th of September under the same circumstances then, of course, you may find that Mr. Suria was not guilty of any contributory or comparative negligence, as we use that term.

"Negligence on Mr. Suria's part would not prevent his recovering damages in this lawsuit. But it would result in a reduction in the amount to which he ...


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