Opinion
June 25, 1973
In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering of plaintiff's wife and newborn infant son, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered March 27, 1972, in favor of defendant, upon a jury verdict. Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to appellant to abide the event. This court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. The trial court did not charge the jury as to the professional care owed by defendant's employee, a physician, to plaintiff's interstates. Instead, it erroneously defined this duty in terms of what a reasonably prudent person would have done in the circumstances, rather than what a reasonably prudent physician would have done. The jury interrupted its deliberations to ask the court to define and interpret negligence in respect to this case. The court repeated its charge on the subject and the jury then resumed its deliberations, which were later adjourned to the following day. On the latter date, upon the reconvening of the court, the jury requested a rereading of the court's original charge. The charge was then reread to the point where one of the jurors said that it was enough. Thereafter the jury found for defendant by a vote of 10 to 2. It is thus apparent that the jury was confused (cf. Clark v. Donovan, 34 A.D.2d 1099); and, in our opinion, a new trial is required in the interests of justice (cf. U.S. Vitamin Pharm. Corp. v. Capitol Cold Stor. Co., 21 A.D.2d 661). Rabin, P.J., Hopkins, Martuscello, Shapiro and Christ, JJ., concur.