Opinion
October 5, 1967
Judgment in the sum of $10,205.25, against the defendants, in an action for malpractice, unanimously modified, on the facts and on the law, so as to dismiss the complaint as against defendants-appellants-respondents, and, as so modified, affirmed, with $50 costs and disbursements to defendants-appellants-respondents. Plaintiff was transferred by ambulance from the Manhattan Eye Ear Hospital to the Admitting Office of the Bellevue Hospital Psychiatric Division with a request for an evaluation of her mental condition, pursuant to the provisions of section 81 of the Mental Hygiene Law. There is no proof of actionable malpractice. In the absence of medical proof that the request for the mental evaluation was not indicated, or that the defendants' acts were not in accordance with accepted medical practice, there is no legal basis for the judgment. If we did not dismiss the complaint, we would reverse and order a new trial on the grounds (1) that the verdict is against the weight of the evidence, (2) that the court's charge was inadequate in that it permitted the jury to find against the appellants if the jury believed that the plaintiff's transfer was unnecessary or improper, without criteria for the determination of such question, and (3) the court erred in refusing to charge as requested by appellants that plaintiff was not entitled to damages for the period of her detention at Bellevue Hospital, which the trial court properly found was not an illegal detention, nor for any wrongful treatment as alleged while at Bellevue Hospital.
Concur — Eager, J.P., Steuer, Capozzoli, Rabin and McNally, JJ.