Volkell v. Wolf

151 N.Y.S. 918

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 4, 1915
• Status: Published

Opinion

SHEARN, J.

The defendant, a surgeon, operating in a dispensary, inflicted an injury upon this infant plaintiff while cutting through a bandage in which the child’s broken arm was wrapped. Defendant claims that, if the bandage had been adjusted properly and in the usual fashion, the patient’s hand would have been fastened tightly to the body and in no danger of being cut. He admits that before cutting .he made • no examination to ascertain where the hand was, or what was concealed under the point where he applied the shears, claiming that “he had a right to assume that it (the bandage) was properly put on”; also that “I think the whole hand was exposed, but I did not see it; I had the impression that the bandage was outside of the upper part;” also that it was merely good fortune that the infant’s hand was not cut off.

The hurry of work in a public dispensary does not excuse the lack of ordinary care. Defendant could not assume that the hand was in 3, safe position, and rely on that, when the fact could be readily ascertained by himself before applying the shears. The finding of negligence was warranted by the evidence. The alleged prejudicial remarks of plaintiff’s counsel do not appear in the record, and the verdict is not excessive.

Judgment affirmed, with costs. All concur.