Harding v. Noble Taxi Corp.

182 A.D.2d 365
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 2, 1992
StatusPublished
Cited by19 cases

This text of 182 A.D.2d 365 (Harding v. Noble Taxi Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harding v. Noble Taxi Corp., 182 A.D.2d 365 (N.Y. Ct. App. 1992).

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered August 7, 1990, which, inter alia, dismissed the action against the defendants Lenox Hill Hospital and William Rosenblatt, M.D., and which, upon a jury verdict, found in favor of the defendant Beverly Hurd, M.D., unanimously reversed, insofar as appealed, on the law, the facts and in the exercise of discretion, and a new trial ordered as to the defendants Lenox Hill Hospital, William Rosenblatt, M.D., and Beverly Hurd, M.D., on the issues of liability and damages, before a different Justice of the Supreme Court, without costs.

In these consolidated actions, the plaintiff sought to recover damages for personal injuries sustained while a passenger in a taxicab which collided with another taxicab and for the alleged malpractice which occurred when she sought treatment for her injuries. The plaintiff hit her head against the divider of the taxicab in the accident on February 11, 1982, and was taken by ambulance to Bellevue Hospital. After a friend referred her to the defendant, William Rosenblatt, M.D., a plastic surgeon, she transferred to the emergency room at the defendant Lenox Hill Hospital, with which Dr. Rosenblatt was affiliated.

A nurse in the emergency room removed the bandage over the plaintiff’s eye and gave her a tetanus shot. The plaintiff testified that the nurse did not obtain her vital signs. When Dr. Rosenblatt arrived, the plaintiff told him that she did not know if she had lost consciousness after the accident. He sutured and dressed her wound and told her that she just had a "football concussion” and that she would be fine. He gave her a prescription for Tylenol with codeine and discharged her. The plaintiffs experts testified that prescribing such medication constituted a departure from accepted standards of medical practice because codeine increases intracranial pressure, exacerbating a head injury and because it deadens nerve perception of pain, leading the patient to be more active than advisable.

According to the plaintiff, Dr. Rosenblatt never took her vital signs, never performed a neurological examination, never consulted a neurologist or a physician trained in emergency medicine and discharged her without furnishing her with a head trauma sheet. Lenox Hill Hospital guidelines require that a head trauma sheet, which alerts patients to dangerous symptoms such as nausea, vomiting, drowsiness, disorientation, irritability, clear fluid dripping from ears or nose, [367]*367blurred vision and stiffness of the neck and informs them to contact a physician or to return to the emergency room should such symptoms develop, be furnished to patients suffering a head injury. The head trauma sheet also instructs patients not to use narcotics unless specified by a physician and also advises patients to have someone monitor them to arouse them every hour for 24 hours.

The plaintiff filled the prescription for Tylenol with codeine and went home with the help of her friends. One of her friends telephoned the emergency room at Lenox Hill Hospital later that evening because the plaintiff was in pain, her eyes were swollen shut, she was drowsy and felt ill. The emergency room physician responded that the plaintiff just needed rest. The plaintiff’s friends then left her alone in the apartment. She took the Tylenol with codeine and went to sleep, but awoke at 4:00 a.m. with a severe headache. She also threw up blood, was dizzy and a clear fluid was dripping from her nose. She took more medication and went back to sleep.

When the telephone awakened her at 11:00 a.m. the next morning, the plaintiff felt worse and had most of the symptoms listed on the head trauma sheet. She took more Tylenol with codeine. Her mother arrived later that afternoon, prepared a list of her daughter’s symptoms and accompanied her to the emergency room at Lenox Hill at approximately 8:00 p.m. The emergency room physician, the defendant Dr. Beverly Hurd, advised the plaintiff to go home and rest and to drink clear liquids. Dr. Hurd did not instruct the plaintiff to stop taking the Tylenol with codeine even though she testified at trial that she would not have prescribed it for a patient who had suffered a head injury. According to the plaintiff, Dr. Hurd, although provided with a list of her symptoms, failed to conduct a complete neurological examination or to consult with a neurologist, and failed to furnish her with a head trauma sheet.

Upon her discharge from the emergency room, the plaintiff went to her parents’ home in Long Island. During the first week after the accident, the plaintiff’s condition failed to improve. She continued to vomit blood, discharge clear fluid from her nose, sleep most of the time and had difficulty walking. She then consulted her family physician who referred her to a neurologist. The plaintiff has been diagnosed as suffering from brain damage and has been in and out of hospitals and rehabilitation centers since the accident.

Fluid began to accumulate in the plaintiff’s brain after the accident, causing it to swell. The parties dispute the time [368]*368period over which this condition, known as cerebral edema, began to develop. The plaintiffs expert testified that when the fluid was permitted to remain, the swelling led to the death of the nerve cells in the brain. He added that had the plaintiff received timely, proper treatment, 80 percent of her injuries could have been prevented.

The plaintiff alleged that Lenox Hill Hospital and Dr. Rosenblatt departed from accepted standards of medical practice when the emergency room nurse and Dr. Rosenblatt failed to obtain her vital signs, when Dr. Rosenblatt performed an incomplete neurological examination and failed to record the results of the examination on the hospital chart, failed to consult a neurologist or physician trained in emergency room medicine, prescribed Tylenol with codeine, discharged the plaintiff from the hospital on the evening of the accident, and failed to furnish her with a head trauma sheet. The plaintiff further alleged that the hospital was also liable for the purported malpractice of the physician who spoke to the plaintiffs friend on the telephone, who instead of advising the plaintiff to return to the hospital, informed her that she just needed rest.

With regard to Dr. Hurd, the plaintiff alleged that she committed malpractice by failing to perform a complete neurological examination, by failing to consult with a neurologist, by failing to order a Computerized Axial Tomography (CAT) scan, by failing to furnish the plaintiff with a head trauma sheet upon her discharge from the hospital and by permitting the plaintiff to continue taking the Tylenol with codeine.

After the plaintiffs final medical expert completed his direct examination, but prior to the completion of the plaintiffs case, the trial court sua sponte dismissed the action against Dr. Rosenblatt and Lenox Hill Hospital for failure to establish a prima facie case. The court found that although the testimony of the plaintiffs medical experts set forth a number of departures from accepted standards of medical practice by all of the medical defendants, only a prima facie case against Dr. Hurd and the hospital, as her employer, had been established based on Dr. Hurd’s failure to consult a neurologist or neurological resident and failure to order a CAT scan. The court held that the plaintiffs experts failed to establish that any other departures proximately caused the plaintiffs injuries. The plaintiffs motion to reopen to adduce further testimony from her medical expert was denied.

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Bluebook (online)
182 A.D.2d 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harding-v-noble-taxi-corp-nyappdiv-1992.