Scott v. Kaye

24 A.D.2d 890, 264 N.Y.S.2d 752, 1965 N.Y. App. Div. LEXIS 2976

Opinion

In a malpractice action against two doctors and a hospital, the plaintiff appeals from a judgment of the Supreme Court, Queens County, entered November 19, 1963, which dismissed the complaint, on defendants’ motion, at the close of the entire case. Judgment affirmed, without costs, as to defendant Physicians’ Hospital, Inc. Judgment reversed on the law and the facts, action severed and new trial granted as to defendants Kaye and Slocum, with costs to abide the event. On this record it is our opinion that there were fact issues for the jury as to (a) whether defendants Kaye and Slocum performed an unauthorized operation because of an alleged failure previously to inform plaintiff about the true nature of the operation and the risks attendant thereon; and (b) whether said defendants made an inadequate, unskilled preoperative examination and diagnosis which allegedly resulted in an emergency situation during the operation, and the injuries sustained by plaintiff. In the interests of justice, there should be a retrial of all issues de novo. Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.