Opinion
November 13, 1981
Appeal from the Wayne Supreme Court, Stiles, J.
Present — Cardamone, J.P., Callahan, Doerr, Denman and Schnepp, JJ.
Judgment reversed, with costs, and a new trial granted as to all defendants. All concur, Cardamone, J.P., not participating. Memorandum: Plaintiff, Linda D. Nicholas, while riding as a passenger on a motorcycle received a severely broken left leg in an accident. She was hospitalized for 22 weeks in Newark-Wayne Community Hospital from August 4, 1973 until January 16, 1974. While confined there she was treated by Drs. Reason, Duffner and Reeves, the defendants. She instituted the instant medical malpractice action which was dismissed by the trial court as against Drs. Duffner and Reeves upon their motion at the close of plaintiff's proof. The case went to the jury solely against Dr. Reason which returned a no cause for action in his favor. To be entitled to judgment as a matter of law, the defendant movant has the burden of showing that plaintiff failed to make out a prima facie case (4 Weinstein-Korn-Miller, N.Y. Civ Prac, par 4401.05). The plaintiff's evidence is accepted as true (Siegel, New York Practice, § 402, p 529) and plaintiff is entitled to the benefit of the most favorable inferences which can reasonably be drawn from such evidence (Parvi v. City of Kingston, 41 N.Y.2d 553, 554; Sagorsky v. Malyon, 307 N.Y. 584, 586; Tripi v. Stillwell, 22 A.D.2d 759). Guided by these principles, the court may grant the motion only if there is no rational process by which the jury could find for the plaintiff as against the moving defendants (Siegel, New York Practice, § 402, p 529; 4 Weinstein-Korn-Miller, N.Y. Civ Prac, par 4401.05). Thus, for defendant doctors Duffner and Reeves to have been entitled to judgment as a matter of law, they were required to show that plaintiff had not proved, prima facie, that they failed to exercise such reasonable care and diligence in their treatment of her as would be expected of the average member of the medical profession in the locality at the time of the treatment (see Pike v. Honsinger, 155 N.Y. 201, 209-210; Twitchell v. MacKay, 78 A.D.2d 125, 128; Hale v. State of New York, 53 A.D.2d 1025), or that she failed to prove "proximate cause" which the plaintiff in a medical malpractice action, as in any negligence action, is required to prove (Kletnieks v. Brookhaven Mem. Assn., 53 A.D.2d 169, 176). In that connection Dr. Finkel, a certified specialist in generalized orthopedics, testified that he examined plaintiff's complete hospital records from Newark-Wayne Community Hospital and Genesee Hospital, as well as the records of Dr. Miller who took over plaintiff's treatment on January 16, 1974 when plaintiff was transferred to Genesee Hospital. He stated he was familiar with the standard of care in 1973 and 1974 for the treatment of injuries such as plaintiff incurred. He "believe[d] that there was a divergence from acceptable medical standards in plaintiff's treatment between August, 1973 and January, 1974." The condition reported by Dr. Miller on January 16, 1974 — nonunion of the bone, areas of skin loss over the pedicle flap, areas of dead and necrotic bone, and drainage from the wound — was, he believed, the result of that deviation. While the record reflects that Dr. Finkel's testimony on direct was somewhat general, his testimony on cross-examination and redirect was more specific and sufficient to establish the elements of malpractice against these two defendants (cf. Ward v. Kovacs, 55 A.D.2d 391, 397). Consequently, there were issues of fact with respect to defendants Duffner and Reeves which required a determination by the jury (see, e.g., Squire v. Meyers, 46 A.D.2d 694; McGovern v. Attie, 30 A.D.2d 559; cf. Wessel v. Krop, 30 A.D.2d 764). That Dr. Duffner and Dr. Reeves were, as the trial court stressed, "merely to attend the patient for a short time while Dr. Reason was on vacation" does not absolve them as a matter of law from liability. It is for the jury to consider on retrial (see Arshansky v. Royal Concourse Co., 28 A.D.2d 986; cf. Pigno v. Bunim, 43 A.D.2d 718, affd 35 N.Y.2d 841). Finally, while it may be that the jury's verdict as to defendant Reason was not against the weight of the evidence, inasmuch as there was a difference of opinion between experts, nevertheless, in our view it would be eminently unfair to plaintiff on the retrial of this case for defendant Dr. Reason to be excluded (cf. Joyce v. Kowalcewski, 80 A.D.2d 27, 30). After the case against Dr. Duffner was dismissed he testified as a defense witness and helped to rescue the remaining defendant, Dr. Reason, from the onus of failing to treat the diagnosed infection of August 19, 1973, by stating that it was now (although not formerly) his opinion that there had not been a flap infection. Accordingly, in the interest of justice a new trial should be granted as to all defendants.