De Simone v. Lutheran Medical Center

34 A.D.2d 660, 310 N.Y.S.2d 201, 1970 N.Y. App. Div. LEXIS 5121

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1970
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injury, etc., defendant appeals from an order of the Supreme Court, Kings County, dated May 12, 1969, which granted plaintiffs’ motion for summary judgment and, inter alia, ordered an assessment of damages. Order reversed, on the law, without costs, and motion denied. The injured plaintiff, Mrs. De Simone, claims to have been given a blood transfusion of the wrong type blood while in the defendant hospital. Plaintiffs rely on the doctrine of res ipsa loquitwr, but it is well established that the inferences created by this doctrine are for the triers of the fact (George Foltis, Inc. v. City of New York, 287 N. Y. 108; Benson v. Bohack Food Markets, 33 A D 2d 908). In addition, Special Term based its decision On conclusions not supported in the record. There is no support for the court’s finding that plaintiffs’ medical expert condemned the hospital’s procedures as “wholly inadequate and insufficient by any reasonable standards.” The affidavit of defendant’s expert, which should have been considered by Special Term, raised triable issues as to whether errors in transfusions may occur despite compliance with standard procedures’ and as to whether the erroneous blood transfusion was the proximate cause of Mrs. De Simone’s injury. Also, the record raises triable issues as to whether the acts] of the technician under the hurried circumstances were negligently performed, whether Mrs. De Simone’s own attending physician was negligent in earing for her, and, if so, whether such negligence was the cause of her injury. Accordingly, there should be a trial of the issues. Brennan, Acting P. J., Rabin, Hopldns, Martuseello and Kleinfeld, JJ., concur.