Opinion
April 30, 1971
Two separate motions by respondents Dr. Rodriguez and Methodist Hospital for reargument of appeal from judgment of the Supreme Court, Kings County, entered March 9, 1970, and the motion by respondent Dr. Rodriguez is also to amend a certain part of the decision of this court dated March 22, 1971 [ 36 A.D.2d 755] which determined the appeal. Motions granted only to the extent of amending the fourth paragraph of said decision to read as follows: "There was testimony on plaintiffs' behalf tending to show that on June 19, 1962 the infant plaintiff fell down a flight stairs and was taken to the defendant Methodist Hospital of Brooklyn, where he complained, among other things, of pain in his left hip. X rays were taken and he was treated in the emergency room for an injury to his knee only. There was further testimony that the infant returned to the hospital on June 22, 1962 and remained there until June 26, as a `service patient'; that during this period he was treated by Dr. Rodriguez for a sprained knee; and that Dr. Rodriguez relied upon the X ray report of June 19, 1962 and took no further X rays. Although Dr. Balensweig, plaintiffs' medical expert, was not permitted to state what his examination of the X rays taken on June 19, 1962 disclosed, he did state that, in his opinion, with reasonable medical certainty, the X rays, if properly read, would have disclosed the damage to the infant's hip which required a subsequent operation. The same expert also testified that Dr. Rodriguez should have taken X rays on June 22, 1962, that his failure to do so was not in accordance with good medical practice prevailing in the community at the time and that, if he had taken X rays, they would have disclosed the hip damage." Motions denied in all other respects. Rabin, P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.