54 N.Y.2d 176 (1981)

When a jury returns a general verdict on multiple theories of liability, the verdict must be reversed if the evidence is insufficient to support one or more of those theories.

Summary

Joan Davis underwent a bilateral subcutaneous mastectomy performed by Dr. Elethea Caldwell at Strong Memorial Hospital. Subsequently, the Davises sued Dr. Caldwell and the hospital, alleging the surgery was unnecessary. The trial court presented five theories of liability to the jury: erroneous diagnosis, failure to perform a biopsy, unnecessary operation, failure to follow accepted medical standards, and failure to obtain informed consent. The jury returned a general verdict for the plaintiffs. The Court of Appeals reversed, holding that because the evidence was insufficient to support the erroneous diagnosis and unnecessary operation claims, and the general verdict made it impossible to determine if the jury relied on those unsupported claims, a new trial was required on the remaining theories.

Facts

Joan Davis underwent a bilateral subcutaneous mastectomy performed by Dr. Caldwell. Prior to the surgery, a mammogram suggested possible carcinoma, but pathological studies post-surgery revealed no malignancy. Two years prior, cancerous tissue had been removed from Mrs. Davis’ right breast via biopsy. Dr. Wende Logan diagnosed “Bilateral mastopathy with calcification suspicious of carcinoma” before the surgery. Mrs. Davis had previously refused a mastectomy when cancer was detected earlier.

Procedural History

The Davises sued Dr. Caldwell and Strong Memorial Hospital. The trial court submitted five theories of liability to the jury, which returned a general verdict for the plaintiffs. The Appellate Division affirmed. The Court of Appeals reversed the Appellate Division’s order due to insufficient evidence supporting some of the liability theories presented to the jury.

Issue(s)

1. Whether a general verdict in favor of the plaintiff can stand when the jury was instructed on multiple theories of liability, and the evidence was insufficient to support one or more of those theories.

2. Whether there was sufficient evidence to support the theories of liability based on erroneous diagnosis and the performance of an unnecessary operation.

3. Whether there was sufficient evidence to support the theories of liability based on failure to perform a biopsy and failure to obtain informed consent.

Holding

1. No, because it is impossible to determine whether the verdict was based on a theory lacking sufficient evidentiary support.

2. No, because the evidence did not show that Dr. Caldwell made the erroneous diagnosis or that the surgery was unnecessary given the patient’s history and mammogram results.

3. Yes, because the plaintiffs presented expert testimony indicating that performing the mastectomy without a prior biopsy deviated from accepted medical practice and that the patient was not adequately informed about the preventative nature of the surgery or the option of a biopsy.

Court’s Reasoning

The Court reasoned that when a jury is presented with multiple theories of liability and returns a general verdict, the verdict cannot stand if the evidence supporting one or more of those theories is insufficient. The Court found no evidence that Dr. Caldwell made an erroneous diagnosis; the diagnosis was made by Dr. Logan. Regarding the unnecessary operation claim, the Court noted the patient’s history of cancer and the suspicious mammogram results, stating that “Absent medical expert evidence offered by plaintiffs, of which there was none, that the surgery was unnecessary in the circumstances present, the claim predicated on such a contention should have been dismissed”. Regarding the failure to perform a biopsy, the Court noted expert testimony indicating it was a departure from accepted medical practice. The Court also found sufficient evidence of a lack of informed consent, as the plaintiffs testified they were not adequately informed about the preventative nature of the surgery or the alternative of a biopsy. The court referenced CPLR 4401-a regarding expert medical testimony supporting the qualitative insufficiency of consent. The Court emphasized that the jury could have based its verdict on the unsupported theories, necessitating a new trial. The court noted that the testimony presented a question of credibility regarding the conversations with the doctors, but that this did not change the fact that the plaintiffs presented a case for submission to the jury on the claim of lack of informed consent. The court quoted testimony from the defendant’s plastic surgeon that a consent to such an operation without disclosing the doubtfulness of its benefit could not be based on adequate information, thus, not an informed consent. The court also cited testimony that it would be improper medical practice to obtain a patient’s consent on the basis of advice that she had cancer when in fact she did not.