Petersen v. Victory Memorial Hospital

In consolidated medical malpractice actions to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Levine, J.), dated November 17, 1989, which, upon granting the defendant Barenfeld’s motion to dismiss the complaint insofar as asserted against him at the close of the plaintiffs’ evidence, and upon a jury verdict on the issue of liability in favor of the defendants Weseley, Eisenstein and Bay Ridge Orthopaedic Associates, P. C., is in favor of those defendants and against the plaintiffs.

Ordered that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The complaint against the defendant Barenfeld was properly dismissed at the close of the plaintiffs’ evidence. Although the plaintiffs’ expert testified that Barenfeld’s actions in shortening and removing the plaintiff Kari Petersen’s cast were deviations from good and accepted medical practice, taken as a whole, his testimony did not provide a reasonable basis for the jury to infer that these alleged deviations were a proximate cause of her injuries (see, Nicholas v Reason, 84 AD2d 915; see also, Parvi v City of Kingston, 41 NY2d 553, 554; Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169, 176). Rather, it was the expert’s position that the proximate cause of Kari Petersen’s deformity was the failure of the other defendant physicians to properly set and pin the fracture initially. Indeed, he noted that under the circumstances the likelihood that Barenfeld could have limited the deformity to some extent by leaving the cast in place longer was negligible.

In light of the foregoing, it is unnecessary to consider whether the remaining defendants need be included in a new trial against Barenfeld. Lawrence, J. P., Balletta, Rosenblatt and O’Brien, JJ., concur.