Opinion
July 13, 1970
In an action to recover damages for wrongful death of plaintiff's deceased infant quadruplets, based on medical malpractice, defendants Richard Abbondante, D.O., The Long Island Jewish Hospital, and Jack Frankel, M.D., separately appeal (1) from an order of the Supreme Court, Kings County, entered June 18, 1969, which granted their motions to set aside a jury verdict against them and in favor of plaintiff, and granted a new trial as to them, but only if plaintiff failed to stipulate to reduce the verdict as to each child from $50,041.25 to $30,041.25 (plaintiff so stipulated); and (2) as limited by their briefs, from so much of a judgment of said court, entered June 26, 1969, as is in favor of plaintiff against said defendants upon the verdict as reduced by plaintiff's stipulation. Appeals from order dismissed, without costs. No appeal lies from an order which in effect denies motions to set aside a jury verdict unconditionally, made upon the trial minutes. In any event, the contentions raised on appellants' motions have been considered on the appeals from the judgment and are therefore academic. Judgment reversed insofar as appealed from, on the law and the facts, and, as to said defendants, action severed and new trial granted, with costs to abide the event. In our opinion, the finding of the jury, implicit in its verdict, that the various alleged acts of negligence by each of the appellants contributed to the deaths of the infants is unsupported by the record. Because the record does support a finding that appellants were guilty of acts not in conformance with accepted standards of medical practice, although there was no proof of causality, we grant a new trial rather than dismiss the complaint. Furthermore, the introduction into evidence of a contract entered into between a baby food company and another set of quadruplets, on the issue of damages, was error. There being no showing that it was likely that such a contract would have been entered into on behalf of plaintiff's intestates, the introduction of the contract was prejudicial, as remote and speculative. Hopkins, Acting P.J., Munder, Latham, Brennan and Benjamin, JJ., concur.