Gielskie v. State
| Decision Date | 20 April 1961 |
| Citation | 9 N.Y.2d 834,175 N.E.2d 455,216 N.Y.S.2d 85 |
| Parties | , 175 N.E.2d 455 Frank GIELSKIE, Appellant, v. STATE of New York, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Third Department, 10 A.D.2d 471, 200 N.Y.S.2d 691.
Claimant filed a claim against the State of New York when he became permanently and totally paralyzed below the tenth vertebra as result of intraspinous injection by his own physician of tetanus antitoxin serum, made and distributed to doctors, free of charge, with accompanying instructions and information, by the State Department of Health as a part of its public service. The alleged negligence of the State was based solely on printed information accompanying the container of the serum. The printed instruction stated that the serum could be administered intraspinously, intravenously, and intramuscularly, and that intraspinous and intravenous methods were generally recognized as far superior to the intramuscular method for the initial injections, but that there was considerable difference of opinion as to which was the more effective route. The claimant contended that when the serum was administered the intraspinous and intravenous methods were not generally recognized as superior, and that the State was negligent in saying so.
The Court of Claims, Bernard Ryan, P. J., 18 Misc.2d 508, 191 N.Y.S.2d 436, made an award in favor of the claimant, and the State appealed.
The Appellate Division, 10 A.D.2d 471, 200 N.Y.S.2d 691, reversed the judgment on the law and the facts, dismissed the claim, and held that the State was not liable, where record demonstrated that medical opinions and medical text books differed on the proper method of administering the serum.
The Appellate Division, 11 A.D.2d 877, 205 N.Y.S.2d 1003, settled and signed the order.
The claimant appealed to the Court of Appeals and motion was made in the Court of Appeals to have the appeal heard on three copies of the record before the Appellate Division.
The Court of Appeals, 8 N.Y.2d 1117, 209 N.Y.S.2d 795, granted motion to have the appeal heard on three copies of the record before the Appellate Division, with the usual number of printed additional papers and briefs to be filed.
The State contended in the Court of Appeals that the continuance, at least through 1954, of two schools of thought among esteemed members of the medical profession on the issue of whether tetanus antitoxin should, when used therapeutically as opposed to...
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