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HORGER v. NEW YORK UNIV. MED. CTR.

August 28, 1986

TIMOTHY J. HORGER, Plaintiff,
v.
NEW YORK UNIVERSITY MEDICAL CENTER, BRUCE GRYNBAUM, M.D. and PABLO MORALES, M.D., Defendants



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.:

Plaintiff Timothy Horger brought this medical malpractice action to recover for permanent and irreversible injuries allegedly sustained from the implantation of a penile prosthesis. Defendant Dr. Bruce Grynbaum, the physician responsible for Horger's general case, referred Horger to defendant Dr. Pablo Morales, who performed the operation. Both doctors are affiliated with defendant New York University Medical Center ("N.Y.U."). Subject matter jurisdiction is premised on complete diversity of citizenship. 28 U.S.C. § 1332 (1982).

 All of the defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. They assert that the trial of Horger's claims in Horger v. Bay Tankers, Inc., No. 81-4527 (CLB), disposed of any and all issues that are the subject of this litigation. For the reasons discussed below, the defendants' motions are denied.

 I. Background

 A. The Original Injury

 In 1981, Horger, a merchant seaman, worked as a utility pumpman aboard the T.T. New York, a 285,000 ton oil tanker owned by Bay Tankers, Inc. On May 5, 1981, Horger and his Chief Mate were attempting to repair an obstructed float in one of the vessel's petroleum cargo tanks. If the tank, which was six stories deep, had been properly maintained, it would have been totally empty. Horger and the Chief Mate entered the tank together. Each wore scuba-diving type air tanks and face masks to protect against any remaining petroleum fumes. At some point, Horger returned to the deck to replenish his air bottles. While waiting for Horger to return, the Mate became intoxicated by petroleum fumes. He fell, unconscious, into a foot or more of water and petroleum dregs in the bottom of the tank, his life in immediate peril. Horger rushed back into the tank and rescued the Mate. He did not have with him the air apparatus which should have been on the deck but was not. Consequently, he too became intoxicated and lost consciousness.

 The Captain, hearing of the emergency, entered the tank and tied Horger's body to a line. The Captain, who also was affected by the noxious vapors, tied the rope improperly, leaving no trailing line to steady Horger's ascent. As Horger was lifted toward the deck, his body swung in a pendulum fashion and struck the bulkhead. Horger received a 2 1/2 inch gash in his left temple which bled profusely. The blow rendered him unconscious. It is unclear how long Horger remained unconscious.

 B. The Aftermath

 Horger returned to work two days after the accident. He continually complained of severe headaches and was placed on a limited duty schedule. When the T.T. New York reached Scotland two weeks later, Horger was sent ashore to a local health facility. He was then flown to the United States and transferred to the Staten Island Marine Hospital. Thereafter, his condition allegedly deteriorated. He was transferred to the Carrier Foundation, a psychiatric hospital in New Jersey, where he was treated for cognitive defects, depression, severe headaches, and physical and functional deficits.

 At some point during his nine-month stay at Carrier, Horger complained that he was unable to obtain an erection. He was seen by a sex therapist, allegedly to no avail. Eventually, he was transferred to the Institute of Rehabilitation Medicine, more commonly known as Rusk Institute, which is owned, operated, maintained, and controlled by defendant N.Y.U. During his six-month stay at Rusk, he was seen by a large number of physicians, among them doctors Grynbaum and Morales.

 In response to the plaintiff's alleged impotence, Dr. Grynbaum brought in Dr. Morales, the Chief of Urology at N.Y.U. On September 17, 1982, Dr. Morales performed the penile implantation surgery which, the plaintiff alleges, has left him able to obtain an erection and engage in sexual intercourse but unable to achieve orgasm.

 C. The Prior Action

 1. Horger v. Bay Tankers, Inc.

 In July 1981, Horger commenced an action in this district against Bay Tankers, Inc., the owner of the T.T. New York, under the Jones Act, 46 U.S.C. § 688 (1982). He sought over $5,000,000 for injuries allegedly ...


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