O'Neill v. Montefiore Hospital

• Decision Date: 28 June 1960
• Citation: 11 A.D.2d 132,202 N.Y.S.2d 436
• Parties: Margaret O'NEILL, as administratrix of the goods, chattels and credits which were of John J. O'Neill, deceased, Plaintiff-Appellant, v. MONTEFIORE HOSPITAL and Frank Graig, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 436

202 N.Y.S.2d 436

11 A.D.2d 132

Margaret O'NEILL, as administratrix of the goods, chattels and credits which were of John J. O'Neill, deceased, Plaintiff-Appellant, v. MONTEFIORE HOSPITAL and Frank Graig, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

June 28, 1960.

Benjamin Adler, New York City, of counsel (Gustave G. Rosenberg, New York City, with him on the brief, Gustave G. Rosenberg & Lawrence M. Rosenberg, New York City, attys.), for appellant.

Harold Shapero, New York City, of counsel (Barton Ingraham with him on the brief, Martin, Clearwater & Bell, New York City, attys.), for respondent Graig.

John Nielsen, New York City, of counsel (John P. Smith, New York City, atty.), for respondent Montefiore Hospital.

Before BREITEL, J. P., and RABIN, VALENTE, McNALLY and STEVENS, JJ.

PER CURIAM.

In this action for the wrongful death of John J. O'Neill, who died of a heart attack on the morning of June 29, 1952, the widow sought recovery against a hospital for failure to render necessary emergency treatment, and against a physician for his failure and refusal to treat the deceased. Since the complaint against the hospital was dismissed at the trial at the close of plaintiff's case and the complaint against the doctor was dismissed at the conclusion of all of the evidence, the question posed on this appeal is whether plaintiff made out a prima facie case sufficient for submission to the jury. In other words, the issue presented is whether, under the circumstances hereinafter described, there was a duty owing respectively by the hospital and the doctor to examine and treat plaintiff's deceased husband.

We need not emphasize that since this case is one to recover for wrongful death, the plaintiff is not held to the degree of proof required from a plaintiff seeking recovery in his own right (Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744; Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 131 N.E.2d 902). Moreover, upon the dismissal of the complaint, the plaintiff is entitled to the benefit of every inference favorable to her (De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430), and, if negligence may be reasonably inferred from the evidence proffered by the plaintiff, the question should be submitted to the jury (Betzag v. Gulf Oil Corp., 298 N.Y. 358, 83 N.E.2d 833; Cornbrooks v. Terminal Barber Shops, Inc., 282 N.Y. 217, 26 N.E.2d 25).

Briefly, the facts, as they appear in the record, are that the plaintiff awoke shortly before 5:00 a. m., and saw her husband standing at the window, rubbing his arms and chest. His mouth was open 'and he was trying to get as much air as he possibly could.' He was perspiring, his face was white as contrasted with his normally ruddy complexion, and he complained of severe pains in his chest and arms. With the assistance of the plaintiff, O'Neill dressed and walked to the hospital, which was three blocks away. He stopped frequently on the way in order to rest and to find a taxicab, but none was available.

It appears that the hospital maintained an emergency room or clinic. When Mr. and Mrs. O'Neill arrived at the hospital, the doorman conducted them to the nurse in charge of the emergency room. The plaintiff told the nurse that the deceased was very ill, was suffering chest and arm pains, and she thought he was having a heart attack, and she requested the services of a doctor. At that point, Mr. O'Neill mentioned that they were members of the Hospital Insurance Plan (hereinafter referred to as HIP). Thereupon the nurse stated that the hospital had no connection with HIP and did not take care of HIP patients. After reflecting for a minute or two, the nurse stated, 'I'll try and get you a HIP doctor,' and then telephoned the defendant Graig, telling him that the deceased was in the emergency room of the hospital, complaining of the pains hereinbefore described. She then handed the telephone to Mr O'Neill who described his pains to Dr. Graig, and then, after a pause, stated, 'Dr. Kirstein.' After another pause Mr. O'Neill said, 'Well I could be dead by 8 o'clock.' When the deceased concluded the telephone conversation, he informed the nurse that Dr. Graig had told him to go home and come back when HIP was open. Mrs. O'Neill, however, asked the nurse to have a doctor examine her husband since it was an emergency. Disregarding the request, the nurse told her that their family doctor would see Mr. O'Neill at 8 o'clock, to which he again replied, 'I could be dead by 8 o'clock.'

When examination or treatment at the hospital was refused, the plaintiff and the deceased left and returned home on foot, pausing occasionally to permit him to catch his breath. After they arrived at their apartment, and as the plaintiff was helping her husband to disrobe, he fell to the floor and died before any medical attention could be obtained.

Insofar as the cause of action against Dr. Graig is concerned, the proof indicates and the court found that the plaintiff and her husband were members of the Montefiore Group of HIP. Two of the doctors composing that group, and under contract with HIP to treat its members, were Doctors...