Payton v. Brooklyn Hosp.
| Decision Date | 09 July 1964 |
| Citation | 21 A.D.2d 898,252 N.Y.S.2d 419 |
| Parties | William PAYTON, Administrator of the estate of Ernestine Payton, Deceased, and William Payton, Appellant, v. BROOKLYN HOSPITAL, Respondent; and Others, Defendants. |
| Court | New York Supreme Court — Appellate Division |
Berger & Peters, Brooklyn, for appellant; Fred Peters, Brooklyn, of counsel.
Hartsell & Harrington, New York City, for respondent; John F. Smith, New York City, of counsel.
In an action by an administrator, based on breach of warranty, to recover damages for the death of plaintiff's intestate which allegedly resulted from a transfusion of contaminated blood furnished by the defendant Brooklyn Hospital, the plaintiff appeal from a judgment of the Supreme Court, Kings County, entered February 19, 1963 in favor of said defendant upon the dismissal of the complaint after the opening statement to the jury by plaintiff's counsel. Judgment affirmed, without costs. No opinion.
In his opening statement, plaintiff's counsel told the jury he would prove: (1) that a physician employed by the defendant Hospital advised plaintiff that the condition of his wife, then a Hospital patient, warranted a blood transfusion; (2) that 'the husband inquired of the physician as to whether such blood transfusion was a dangerous one in view of her pregnant condition, and in view of her other condition' [sickle cell anemia]; and (3) that 'the husband was assured by said physician that there was no danger to either the unborn child or the mother.' Plaintiff's counsel further said he would prove: (4) that plaintiff consented to his wife's receiving a transfusion of blood obtained from the defendant Hospital's blood bank; (5) that she was given a transfusion of such blood which was in fact contaminated with serum hepatitis virus; and (6) that she thereby contracted homologous serum hepatitis which caused her death some five months later. Interpreting this opening statement liberally, as we must (Katz v. City of New York, 162 App.Div. 132, 134, 147 N.Y.S. 327), we are of the opinion that plaintiff offered to prove an express warranty by defendant's physician-employee that the transfusion he recommended would involve no danger at all to plaintiff's wife. Such a warranty, if made, is demonstrably unfounded on fact (see Perlmutter v....
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Carter v. Inter-Faith Hospital of Queens, INTER-FAITH
...as a result of a transfusion of 'bad' blood. (Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792; Payton v. Brooklyn Hospital, 21 A.D.2d 898, 252 N.Y.S.2d 419, affd. 19 N.Y.2d 610, 278 N.Y.S.2d 398, 224 N.E.2d 891.) In Perlmutter, the Court of Appeals denied recovery for breach......
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Cheshire v. Southampton Hospital Ass'n
...sufficient to permit an action to proceed to trial (Napoli v. St. Peter's Hosp. of Brooklyn, Sup., 213 N.Y.S.2d 6; Payton v. Brooklyn Hosp., 21 A.D.2d 898, 252 N.Y.S.2d 419, dissenting opinion, affd. 19 N.Y.2d 610, 278 N.Y.S.2d 398, 224 N.E.2d 891). However, that view is apparently a minori......
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Simone v. Long Island Jewish Hillside Medical Center
...v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, reh. den.,308 N.Y. 812, 125 N.E.2d 869. (See, also, Payton v. Brooklyn Hospital,21 A.D.2d 898, 252 N.Y.S.2d 419, aff'd. 19 N.Y.2d 610, 278 N.Y.S.2d 398, 224 N.E.2d 891; Carter v. Inter-Faith Hospital of Queens, 60 Misc.2d 733, 304 N.Y.S.......
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Davidson v. Hillcrest General Hospital
...of the blood transfused was legally insufficient (Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792; Payton v. Brooklyn Hosp., 21 A.D.2d 898, 252 N.Y.S.2d 419, affd. 19 N.Y.2d 610, 278 N.Y.S.2d 398, 224 N.E.2d ...