Matlick v. Long Island Jewish Hospital , 267 N.Y.S.2d 631 ( 1966 )

In a medical malpractice action, plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County, entered October 15, 1964, as is in favor of defendant hospital (upon the court’s dismissal of the complaint as against the hospital at the close of the entire ease) and in favor of defendant Goldsmith (upon the jury’s verdict). Judgment, insofar as appealed from, reversed on the law and the facts, and a new trial granted as against said two defendants, with costs to plaintiffs to abide the event. The action is severed as to said two defendants. No questions of fact have been considered as to the defendant hospital. In our opinion, plaintiffs sufficiently proved that the injury occurred while plaintiff Frances Matlick was under anesthesia in the defendant hospital. Defendant Dr. Goldsmith was the anesthesiologist. Unlike the situation in Quinones v. St. Vincent’s Hosp. (20 A D 2d 529, affd. 16 N Y 2d 572), plaintiffs’ medical expert had personal knowledge of the events, having treated Mrs. Matlick some 10 days after the occurrence and for several years thereafter, and having participated in an eventual operation that disclosed a nerve condition specifically attributed to trauma by external force occasioned while under anesthesia at the defendant hospital for an operation unrelated to the area of injury. There was sufficient history and testimony by Mrs. Matlick to support the expert’s opinion. It was error to dismiss the complaint as against the defendant hospital in view of the above evidence, from which we must draw all favorable inferences in favor of plaintiffs. The hospital is liable for any negligent acts of its own employees and the evidence indicates that the hospital had concurrent control with Dr. Goldsmith. Plaintiffs are entitled to have the ease go to the jury on the theory of res vpsa loquitur against both the hospital and Dr. Goldsmith. For this reason alone we are compelled to hold that the interests of justice require that plaintiffs be granted a new trial against Dr. Goldsmith on the theory of res ipsa loquitur. We would otherwise affirm the judgment as to him. On this record, no ease of ordinary negligence can be made out and the new trial should proceed solely on the theory of res ipsa loquitur.

Hill, Hopkins and Benjamin, JJ., concur;