Olivieri v. Schwartz

Appellate Division of the Supreme Court of New York

Olivieri v. Schwartz

120 A.D.2d 658, 502 N.Y.S.2d 252, 1986 N.Y. App. Div. LEXIS 56757

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1986

StatusPublished

This text of 120 A.D.2d 658 (Olivieri v. Schwartz) 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

Olivieri v. Schwartz, 120 A.D.2d 658, 502 N.Y.S.2d 252, 1986 N.Y. App. Div. LEXIS 56757 (N.Y. Ct. App. 1986).

Pincite

Opinion

In an action to recover damages for injuries resulting from medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Widlitz, J.), dated January 22, 1985, which dismissed the complaint as to the defendant Long Beach Memorial Hospital, after the close of the plaintiff’s case.

Judgment affirmed, with costs.

The plaintiff failed to adduce proof that hospital personnel allowed him to lie flat on his back between the time of his myelogram and the onset of his excruciating headaches. His expert’s testimony that the dye reached his head more quickly than would be expected because he was permitted to lie flat was based upon speculation, and was insufficient to prove that the nurses failed to follow the physician’s orders (see, Caton v Doug Urban Constr. Co., 65 NY2d 909). This is especially true since the expert acknowledged that other factors also could have affected the rapidity with which the dye reached the plaintiff’s head.

The plaintiff’s remaining contentions have been considered and found to be without merit. Accordingly, the complaint as against the hospital was properly dismissed. Brown, J. P., Weinstein, Niehoff and Spatt, JJ., concur.

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In an action to recover damages for injuries resulting from medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Widlitz, J.), dated January 22, 1985, which dismissed the complaint as to the defendant Long Beach Memorial Hospital, after the close of the plaintiff’s case.

Judgment affirmed, with costs.

The plaintiff failed to adduce proof that hospital personnel allowed him to lie flat on his back between the time of his myelogram and the onset of his excruciating headaches. His expert’s testimony that the dye reached his head more quickly than would be expected because he was permitted to lie flat was based upon speculation, and was insufficient to prove that the nurses failed to follow the physician’s orders (see, Caton v Doug Urban Constr. Co., 65 NY2d 909). This is especially true since the expert acknowledged that other factors also could have affected the rapidity with which the dye reached the plaintiff’s head.

The plaintiff’s remaining contentions have been considered and found to be without merit. Accordingly, the complaint as against the hospital was properly dismissed. Brown, J. P., Weinstein, Niehoff and Spatt, JJ., concur.

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Bluebook (online)

120 A.D.2d 658, 502 N.Y.S.2d 252, 1986 N.Y. App. Div. LEXIS 56757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivieri-v-schwartz-nyappdiv-1986.