Depenbrok

Defendants appeal from a judgment against them in an action for medical malpractice. We reverse the judgment.

Plaintiff, a young woman of 21, had had two children by caesarean section; she was again pregnant and faced a third delivery. She was told by a doctor on the staff of defendant that any further such deliveries would be highly dangerous. The doctor recommended that, when the third caesarean was performed, she should have, at the same time, a bilateral tubal ligation. Plaintiff’s testimony was that, during several conversations on the subject, the doctor told her that such an operation was “permanent and irreversible.” Discussions with another staff doctor allegedly contained the same statement. The operation was performed but plaintiff became pregnant a few months later. That new pregnancy required her to have a therapeutic abortion and a second tubular surgeiy.

The case went to the jury on three theories: medical negligence; lack of informed consent; and breach of warranty. The jury brought in a general verdict for plaintiff in the amount of $22,500. A motion for new trial was denied.

On this appeal, defendants do not attack the instructions on negligence or on…

I dissent.

The majority holds that the jury was instructed incorrectly on the issue of defendants’ liability for breach of warranty, and that the giving of such instruction, even though there were other theories of liability advanced by the evidence, constituted a miscarriage of justice. The majority asserts that the miscarriage of justice results from the fact that it cannot be determined what theory of liability was adopted by the jury. It is the view of the majority that one instruction, given by the court to the jury at plaintifFs request, permitted the juiy to award plaintiff a verdict on the breach-of-warranty theory without a finding that the defendants had expressly promised or warranted that a certain result would follow from the particular operation consented to by plaintiff.

It is my view that there were no errors with respect to the instructions given regarding the breach-of-warranty theory, and that the majority has engaged in unwarranted speculation and specious reasoning in concluding that the jury could have been misled by the instructions given by the court.

In the case at bench, the plaintiff’s testimony was certain and definite. She testified that Dr.…

Defendants appeal from a judgment against them in an action for medical malpractice. We reverse the judgment.

Plaintiff, a young woman of 21, had had two children by caesarean section; she was again pregnant and faced a third delivery. She was told by a doctor on the staff of defendant that any further such deliveries would be highly dangerous. The doctor recommended that, when the third caesarean was performed, she should have, at the same time, a bilateral tubal ligation. Plaintiff's testimony was that, during several conversations on the subject, the doctor told her that such an operation was "permanent and irreversible." Discussions with another staff doctor allegedly contained the same statement. The operation was performed but plaintiff became pregnant a few months later. That new pregnancy required her to have a therapeutic abortion and a second tubular surgery.

The case went to the jury on three theories: medical negligence; lack of informed consent; and breach of warranty. The jury brought in a general verdict for plaintiff in the amount of $22,500. A motion for new trial was denied.

On this appeal, defendants do not attack the instructions on…