ROBINS v. FINESTONE, N.Y., Judgment, Law, casemine.com

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Attorney(S)

Henry G. Littau, Julius Hallheimer and Abraham Heller for appellant. Robert C. Heidell for respondent.

Judges

Albert Conway

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Smart Summary

Factual and Procedural Background

The plaintiff, Louis D. Robins, employed the defendant, Edward O. Finestone, a licensed physician and surgeon, to perform an operation to remove a growth by fulguration—a procedure that would not involve an incision through the abdominal wall. The contract specified compensation not to exceed $150 and included a promise by the defendant to perform the operation in a good and workmanlike manner, to cure the plaintiff within one or two days, and to enable him to leave the hospital and immediately resume his occupation.

Contrary to the contract, the defendant performed the operation unskillfully and unprofessionally, puncturing one of the plaintiff’s organs twice, which necessitated a major operation involving an abdominal incision. The plaintiff was hospitalized for about a month and incurred significant expenses for medical treatment and was unable to work for a considerable period. The defendant moved to dismiss the complaint on the ground that the claim was barred by the Statute of Limitations applicable to tort actions, asserting that the complaint stated a cause of action in malpractice rather than contract.

The appeal arises from the Supreme Court, Appellate Division, First Department’s dismissal of the complaint, which the Court of Appeals now reviews.

Legal Issues Presented

Whether the complaint states a cause of action in contract rather than in tort (malpractice).
If the complaint states a contract cause of action, whether the action is barred by the Statute of Limitations applicable to tort claims.

Arguments of the Parties

Appellant's Arguments

The plaintiff alleges a special contract with the defendant to cure within a specified time by a specified method, thus stating a cause of action in contract.
The damages sought are consistent with breach of contract—payments made and expenses incurred—not damages for pain and suffering typical of malpractice claims.
Allegations of unskillfulness and unworkmanlike performance do not convert the contract claim into a tort claim, as such language is common in service contract breaches.
The plaintiff’s claim is distinct from malpractice and should not be barred by the two-year Statute of Limitations applicable to tort claims.

Respondent's Arguments

The gravamen of the complaint is malpractice, a tort claim barred by the Statute of Limitations.
The allegations of physical disfigurement and inability to work are characteristic of a tort claim rather than a contract claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Colvin v. Smith, 276 App. Div. 9, 10	Distinction between contract claims for a promised result and tort claims for malpractice; recognition that a special contract to cure can be enforceable.	The court relied on this precedent to affirm that the plaintiff’s complaint states a cause of action for breach of contract separate from malpractice, emphasizing the difference in theory, proof, and damages recoverable.
Safian v. AEtna Life Ins. Co., 260 App. Div. 765, aff’d 286 N.Y. 649	Distinction between insurance coverage and legal duties for malpractice versus breach of contract claims.	Used to support the legal distinction that a doctor’s failure to effect a cure under contract is a breach of contract even if highest professional skill was used.
Weintraub v. Weintraub, 302 N.Y. 104, 110	Procedural rule regarding final determinations and the necessity of answering certified questions.	The court declined to answer certified questions because the determination dismissing the complaint was final and a judgment had been entered.

Court's Reasoning and Analysis

The court analyzed the complaint’s allegations as true and concluded that it states a cause of action in contract rather than tort. The court emphasized that although it is unusual for a physician to contract to cure rather than to provide skillful care, such contracts are recognized and enforceable. The court distinguished the contract claim from malpractice by noting that malpractice actions are tortious, based on negligence, and seek damages for personal injury including pain and suffering, whereas contract actions seek damages for failure to perform a special agreement, including monetary losses and expenses incurred.

The court found that the complaint’s focus on the defendant’s promise to cure by a specific method within a specific time, and the damages sought for expenses and lost earnings, align with breach of contract. Allegations of unskillfulness do not convert the claim into malpractice, as such language is common in service contract disputes. The court acknowledged the defendant’s contention that some allegations resemble tort claims but held that these do not overcome the overall characterization of the complaint as a contract claim.

Because the complaint states a contract cause of action, it is not barred by the two-year Statute of Limitations applicable to malpractice claims. The court reversed the dismissal and remitted the matter for further proceedings consistent with this opinion, declining to answer certified questions due to the finality of the determination.

Holding and Implications

The judgment of the Appellate Division and the order of Special Term are reversed.

The court held that the complaint states a cause of action for breach of contract, not malpractice, and thus the action is not barred by the Statute of Limitations applicable to tort claims. The case is remanded for further proceedings consistent with this determination. The decision directly affects the parties by reinstating the plaintiff’s contract claim and does not establish new precedent beyond reaffirming the recognized distinction between contract and malpractice claims in medical service contexts.

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LOUIS D. ROBINS, Appellant, v. EDWARD O. FINESTONE, Respondent.

CONWAY, Ch. J.

The question presented is whether the complaint states a cause of action in contract. If it does, the action is not barred by the Statute of Limitations. If it states a cause of action in tort for malpractice, it is barred by the two-year Statute of Limitations. (Civ. Prac. Act, § 50, subd. 1.) On that ground defendant has moved to dismiss the complaint and we accept plaintiff's allegations as true. Those allegations are in substance as follows: Plaintiff employed defendant, a licensed physician and surgeon, for a compensation not to exceed $150 — to operate upon him for the purpose of removing a growth by fulguration — a procedure which would not involve entry through the abdominal wall by incision. He duly performed all the terms and conditions of the contract. Defendant agreed, as his part of the contract, to perform the operation in a good and workmanlike manner and promised to cure the plaintiff by removing the growth by the method indicated and, as part of the contract, promised that plaintiff would be cured in one or two days, could leave the hospital in that time and could immediately resume his occupation. Instead, in breach of the contract, defendant attempted in an unworkmanlike, unprofessional and unskilled manner to perform the operation by fulguration but as a result of his unskillfulness and his unworkmanlike procedure he twice punctured one of plaintiff's organs and thus necessitated a major operation including the opening of the abdominal wall by incision. As a result plaintiff was hospitalized for approximately a month for postoperative treatment and the cure of the infirmity from which he suffered as well as of the punctures inflicted. By reason of the breach of contract by defendant, the plaintiff was compelled to pay large sums of money for medical and surgical treatment, for medicine and X rays, for journeys to health resorts while convalescing and was prevented from engaging in gainful employment for a considerable period of time to his damage in a large sum of money.

When the complaint is read in its entirety, the conclusion is inescapable that a cause of action for breach of contract is stated. While it may be unusual for a physician to enter into a special contract to cure rather than to undertake only to render his best judgment and skill, since the practice of medicine is not an exact science, it cannot be doubted that there are occasions when such contracts are made (see Colvin v. Smith, 276 App. Div. 9, 10; Safian v. AEtna Life Ins. Co., 260 App. Div. 765, affd. 286 N.Y. 649). As was recently indicated, a doctor and his patient are at liberty to contract for a particular result and, if that result be not attained, a cause of action for breach of contract results which is entirely separate from one for malpractice although both may arise from the same transaction. ( Colvin v. Smith, 276 App. Div. 9, 10, supra, and cases therein cited.) There it was said: "The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other. The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act. In the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof" ( Colvin v. Smith, supra, pp. 9-10; see, also, Safian v. AEtna Life Ins. Co., 260 App. Div. 765, affd. 286 N.Y. 649, supra, where it was pointed out at page 768 that it "should be obvious that insurance coverage for claims arising out of `malpractice, error or mistake,' is clearly legally distinguishable from coverage for breach of contract. The legal duty, the breach of which is covered, is wholly different. If a doctor makes a contract to effect a cure and fails to do so, he is liable for breach of contract even though he use the highest possible professional skill.")

The gist of the action here is defendant's failure to perform his promise to cure plaintiff within a specified time by a specified method. Nowhere in the complaint is there any statement that the plaintiff seeks to recover for his pain and suffering, which would be a relevant and material allegation if it were an action in malpractice. The damages sought are those suited to an action on contract, and help to characterize the complaint as one based upon a contract and not one based upon malpractice and negligence. The fact that the plaintiff alleges that the defendant performed his part of the contract in an "unworkmanlike" and "unskillful" manner does not serve to label the complaint as one stating a cause in malpractice only, since it is frequent in breach of contract actions involving the rendition of services for a plaintiff to allege that the services were unworkmanlike and unskillful. The allegation that plaintiff was "physically disfigured and also prevented from following his occupation completely for a long time thereafter" may be, as defendant contends, an allegation which is peculiar to a tort action rather than a contract action, but, by itself, that allegation cannot overcome the effect of the various allegations which, taken together, state a cause of action for breach of a special contract to cure.

The determination dismissing the complaint is a final determination (see Cohen and Karger, Powers of the New York Court of Appeals, p. 160, n. 16). In view of that and the fact that a judgment was entered upon the order of the Appellate Division, the certified questions need not be answered (see Weintraub v. Weintraub, 302 N.Y. 104, 110; Cohen and Karger, Powers of the New York Court of Appeals, pp. 358-362).

The judgment of the Appellate Division and the order of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein. The questions certified are not answered.

DESMOND, DYE, FROESSEL and BURKE, JJ., concur with CONWAY, Ch. J.; FULD and VAN VOORHIS, JJ., dissent and vote to affirm the determination made by the courts below upon the ground that the gravamen of the complaint is in malpractice, a cause of action concededly barred by the Statute of Limitations.

Judgment accordingly.

ROBINS v. FINESTONE