Opinion
December 6, 1965
In an action by an infant and his father to recover damages for personal injuries, loss of services, etc., the plaintiffs appeal from a judgment of Supreme Court, Kings County, entered January 23, 1963, upon a directed verdict in favor of the defendant, St. Catherine's Hospital, after the granting of its motion to set aside a verdict in the plaintiffs' favor. As against the defendant, Nudelman, the action had been discontinued at the opening of the trial. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. In our opinion, the evidence offered by plaintiffs in this medical malpractice case was sufficient to require submission of the issues to the jury. Though we find that plaintiffs established a prima facie case, it is also our opinion that the verdicts were against the weight of the evidence. We think that the interests of justice require a new trial so that plaintiffs may offer proof with respect to the issues of negligence by the defendant involving not only the manner of the cutdown operations performed on the infant plaintiff, but also the proper treatment of the infant before and after the discovery of osteomyelitis, the prevention of its spread, and the disclosure of the condition to the infant's parents. Christ, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.