Opinion
March 22, 1971
In consolidated negligence and medical malpractice actions, plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered March 9, 1970, in favor of defendants, upon the trial court's dismissal of the complaints as against all defendants at the close of plaintiffs' case, except that plaintiffs do not appeal as against defendant Our Lady of Peace Roman Catholic Church. Judgment reversed insofar as appealed from, on the law, and, as between plaintiffs and defendants other than Our Lady of Peace Roman Catholic Church, actions severed and new trial granted, with costs to abide the event. The questions of fact have not been considered. Because the trial court dismissed the complaints, plaintiffs are entitled to have the proof read in the light most favorable to them and to have the benefit of the reasonable inferences to be drawn from the proof ( Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83; African Metals Corp. v. Bullowa, 288 N.Y. 78, 81). On a motion at the close of the plaintiffs' case, the test is not whether a plaintiff's verdict would have been set aside as contrary to the weight of the credible evidence, but whether the trial court could hold that there was no rational process by which the jury could have found for the plaintiffs (cf. Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245; Wessel v. Krop, 30 A.D.2d 764; Prince v. City of New York, 21 A.D.2d 668). There was testimony on plaintiffs' behalf tending to show that on June 19, 1962 the infant plaintiff fell down a flight of stairs and was taken to the defendant Methodist Hospital of Brooklyn where he was admitted by defendant Dr. Rodriguez as a "service patient". He complained, among other things, of pain in his left hip; and X rays were taken and he was treated in the emergency room for an injury to his knee only. There was further testimony that the infant returned to the hospital on June 22, 1962 and remained there until June 26; that during this period he was treated by Dr. Rodriguez for a sprained knee; and that Dr. Rodriguez relied upon the X-ray report of June 19, 1962 and took no further X rays. Although Dr. Balensweig, plaintiffs' medical expert, was not permitted to state what his examination of the X rays taken on June 19, 1962 disclosed, he did state that, in his opinion, with reasonable medical certainty, the X rays, if properly read, would have disclosed the damage to the infant's hip which required a subsequent operation. The same expert also testified that Dr. Rodriguez should have taken X rays on June 22, 1962, that his failure to do so was not in accordance with good medical practice prevailing in the community at the time and that, if he had taken X rays, they would have disclosed the hip damage. Upon this evidence, there was a triable issue of fact as to whether the infant plaintiff was accorded proper treatment by Dr. Rodriguez and by the Methodist Hospital, which was derivatively responsible for his acts under the doctrine of respondeat superior since he was not "an independently retained healer" ( Fiorentino v. Wenger 19 N.Y.2d 407, 415; Bing v. Thunig 2 N.Y.2d 656, 666; 2B N.Y. Negligence, Warren, p. 218). Furthermore, it was error to preclude plaintiffs' medical expert from testifying to his examination of the June 19, 1962 X rays. These X rays were not produced at the trial, but were shown by documentary evidence to have last been in the possession of the Methodist Hospital. While the testimony of a doctor as to the results of X rays he had taken would be inadmissible without their production ( Marion v. Coon Constr. Co., 216 N.Y. 178), the testimony concerning the readings of X rays should not be precluded where no undue prejudice would arise even though the X rays are not produced. No such prejudice exists here because the X rays were taken by Methodist's roentgenologist, an X-ray report was made part of the Methodist file, and Dr. Rodriguez stated that he examined the X-ray plates when notified of this suit. In fact, Dr. Rodriguez was allowed to testify as to his review of the X-ray plates, made for the first time after suit had commenced. Under the circumstances, there is prejudice to plaintiffs in precluding their expert's testimony. We also hold that the dismissal of plaintiffs' complaints as a matter of law against defendants St. Charles Hospital and Dr. George A. Rawler was error, since the testimony of plaintiffs' two experts raised an issue of fact as to their negligence. Dr. Balensweig, after reviewing the X rays taken at the St. Charles Hospital, and testifying with respect to the three Austin-Moore pins which were intended to be inserted laterally through the greater trochanter along the neck and into the head of the femur, said that those X rays showed one pin almost into the head and the other two short of the head and short of the epiphyseal plate; that the three pins were not in the head where they should be; that there was no union and that the head of the bone had slipped a little bit; and that by reason of these facts there was inadequate immobilization. He said that this was bad practice because either more pins should have been inserted or those which did not hold should have been taken out and put back again properly so that they would hold. He said that the inadequacies of the pins and the aftereffect by the removal of the plaster which allowed the infant to move the affected leg led to nonunion and caused the head to rotate further. His conclusion was that the operative procedure was not satisfactory and was not in accord with good medical practice. He also testified that waiting for some five months to do the second operative procedure, when the pins were removed and replaced with a plate and a Smith-Peterson nail, was not good medical practice. Plaintiffs' other expert was largely corroborative. He testified that it was "very poor practice" to permit the infant to be without a cast and to undergo active exercise to the left lower extremity, with a slippage and a failure of union at the osteotomy site, and that the delay "further reduced his [the infant plaintiff's] chances for a good recovery, even though surgery was performed later in 1964." Defendant Rawler supervised the operation at the St. Charles Hospital when the pins were improperly inserted. Rabin, P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.