## Facts

- Daniel R. Burton was born in 1953 at Brooklyn Doctors Hospital, premature and low birth weight, and was transferred to New York Hospital for premature-infant care.
- At the time, liberal oxygen use for premature infants was common, and retrolental fibroplasia (RLF) was a known, serious risk associated with oxygen exposure that could lead to permanent blindness.
- Burton initially progressed under an attending physician’s order to reduce oxygen exposure.
- Dr. Mary Allen Engle later ordered a prolonged increase in the oxygen concentration in Burton’s incubator as part of a Cooperative Study on oxygen and RLF.
- Engle made the order without personally examining Burton and without consulting his parents.
- Burton’s parents were not told that their child was placed in a research protocol or that oxygen was being increased for study purposes; the father signed only a general hospital consent form without risk disclosure.
- Burton developed RLF and became blind.
- Burton sued for medical malpractice and failure to obtain informed consent against New York Hospital and multiple physicians, including Dr. Engle and Dr. Lawrence S. Ross.
- A jury found New York Hospital and Engle liable for malpractice and lack of informed consent; Ross was found liable only for lack of informed consent; a verdict of about $2.887 million was entered.

## Issues

1. Whether New York Hospital and Dr. Engle deviated from accepted medical practice by increasing Burton’s oxygen exposure contrary to prior orders and without individualized medical necessity, causing blindness.
2. Whether liability for lack of informed consent could be imposed for treatment rendered in 1953, particularly where the increased oxygen was part of an experimental research study and parents signed only a general consent.
3. Whether the evidence supported imposing informed-consent liability on Dr. Ross given his limited involvement.
4. Whether the jury’s damages award was excessive and required reduction or a new trial on damages.

## Decision

- The Appellate Division affirmed the findings of malpractice and lack of informed consent against New York Hospital and Dr. Engle.
- The court concluded the oxygen increase was research-driven rather than medically required for Burton’s condition and could be found a departure from accepted practice that proximately caused his blindness.
- The court upheld the lack-of-informed-consent finding against the hospital and Engle based on nondisclosure of the study, the nature of the oxygen change, and material risks, coupled with only a generic consent form.
- The judgment against Dr. Ross was reversed, finding the record insufficient to support informed-consent liability as to him.
- The court found the damages excessive and ordered a new trial limited to damages unless Burton accepted a remittitur reducing the award to $1,500,000.

## Legal Principles

- A provider may be liable for malpractice when treatment decisions are not grounded in the patient’s individual medical needs and constitute a departure from accepted medical practice that causes injury.
- When medical intervention is undertaken as part of a research protocol, nondisclosure of the experimental nature of the intervention and material risks can support liability for lack of informed consent, even where a general admission consent form was signed.
- Individual liability for lack of informed consent requires proof tying the defendant physician’s role to the nondisclosure and decision-making at issue; limited involvement may defeat liability.
- An appellate court may condition affirmance on remittitur and order a new trial on damages where the verdict materially exceeds reasonable compensation.

## Conclusion

The court sustained liability against the hospital and the physician who increased oxygen as part of a research study without parental disclosure, reversed liability against a physician whose involvement was not adequately shown, and required a reduced damages award or a new trial on damages.


Burton v. Brooklyn Doctors Hosp., 88 A.D.2d 217, 452 N.Y.S.2d 875 (App. Div. 1st Dep’t 1982)