Opinion
May 12, 1970
Judgment entered October 3, 1969, in plaintiff's favor unanimously reversed on the law, the facts and in the exercise of discretion, and a new trial ordered, with $50 costs and disbursements to abide the event. The plaintiff's private physician and surgeon testified that he had not ordered that bedrails or sideboards be placed on the plaintiff's bed since he did not consider them necessary. In the face of this testimony, the trial court, although acknowledging that there was no express claim that the hospital should have supplied bedrails on the plaintiff's bed, committed reversible error in charging the jury that "you are free from all the evidence in the case to infer whether the hospital as a reasonable prudent hospital should have had bedrails on patients' beds and what effect, if any, the bedrails would have had on the accident." The decision as to whether bedrails should be installed on a patient's bed is a medical act. Inasmuch as the plaintiff's physician did not order and in fact saw no need that rails be placed on the plaintiff's bed, the defendant-appellant hospital may not be cast in liability because of their absence. ( Grace v. Manhattan Eye, Ear Throat Hosp., 276 App. Div. 955, affd. 301 N.Y. 660; Pivar v. Manhattan Gen., 279 App. Div. 552; 27 N.Y. Jur., Hospitals and Asylums, § 79; 31 ALR 2d 1128, 1131.) Reversible error was committed too in permitting the plaintiff to testify that he had not received any moneys in a prior action against a third party for his original knee injury. Mention was made in that action of his fall out of the bed at the defendant-appellant's hospital. Unquestionably, the plaintiff's testimony as to the outcome of the previous trial contributed to the return of an obviously excessive award. The general jury verdict of $125,000 may not stand in any event since it may have been based upon the erroneous theory that the hospital was negligent in not providing bedrails on the plaintiff's bed. ( Hamilton v. Presbyterian Hosp. of City of N.Y., 25 A.D.2d 563, app. dsmd. 17 N.Y.2d 719.)
Concur — Eager, J.P., McGivern, Steuer and Tilzer, JJ.; Nunez, J., concurs in result.