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Henzi v. Benezra

Supreme Court, Appellate Term, First Department
Nov 16, 1936
161 Misc. 490 (N.Y. App. Term 1936)

Opinion

November 16, 1936.

Appeal from the Municipal Court of the City of New York, Borough of Manhattan, First District.

Holland Armstrong [ Jefferson Armstrong of counsel], for the appellant.

Lorenz J. Brosnan [ Morgan J. Burke, Jr., of counsel], for the respondent.


Plaintiff was operated on by defendant. She was wholly or partly under anesthesia for several hours during which time her adenoids were removed. After the operation she was returned to her bed in the hospital. Twenty-four hours later she noticed a tooth was injured. There is expert opinion evidence that the injury was of traumatic origin. Plaintiff claims that the rule of res ipsa loquitur applies and that she established a prima facie case of negligence on the part of defendant, the operating physician.

The doctrine of res ipsa loquitur is based on the consideration that control of the thing that produced the injury is exclusively with defendant. ( Stater v. Barnes, 241 N.Y. 284. )

During a large part of the period between the administration of the ether and the discovery of the injury, plaintiff was not under defendant's care but that of the hospital. Under such circumstances plaintiff failed to establish defendant's liability.

Judgment affirmed, with twenty-five dollars costs.

All concur. Present — LYDON, LEVY and CALLAHAN, JJ.


Summaries of

Henzi v. Benezra

Supreme Court, Appellate Term, First Department
Nov 16, 1936
161 Misc. 490 (N.Y. App. Term 1936)
Case details for

Henzi v. Benezra

Case Details

Full title:LOUISE E. HENZI, Appellant, v. NESSIM D. BENEZRA, Respondent

Court:Supreme Court, Appellate Term, First Department

Date published: Nov 16, 1936

Citations

161 Misc. 490 (N.Y. App. Term 1936)
292 N.Y.S. 392