Leone v. Franklin General Hospital

63 A.D.2d 996

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1978
• Status: Published

Opinion

In a medical malpractice action, the defendant doctors appeal form an order of the Supreme Court, Nassau County, dated December 5, 1977, which (1) granted plaintiffs’ motion for summary judgment and (2) directed that the action be placed on the Trial Calendar for an assessment of damages. Order reversed, on the law, without costs or disbursements, and motion denied: The instant record reveals numerous factual issues precluding summary judgment, among them: (1) the role, if any, played by Dr. Zuflacht in the diagnosis and treatment of the infant plaintiff’s foot ailment; (2) the extent of reliance by Dr. Bagdonas on the hospital’s X rays, which were concededly mislabeled and thus indicated an ailment in the foot erroneously operated upon (the left); (3) whether such reliance, if any, constituted a departure from generally accepted medical practices; (4) whether, how and when Dr. Bagdonas may have first learned that the foreign body sought to be excised was located in a toe on the infant plaintiff's right, rather than left, foot; (5) whether Dr. Bagdonas’ failure to discover this fact earlier or to refresh his recollection of it prior to commencing the operation constituted medical malpractice; and (6) whether the hospital consent form signed by the infant plaintiff’s parent, and specifically authorizing the "excision of foreign body— left fourth toe” (emphasis supplied), had been completed at the time of execution, or was executed in blank and completed thereafter. Gulotta, J. P., Shapiro, Cohalan and O’Connor, JJ., concur.