Rivera v. Bronx-Lebanon Hospital Center

• Decision Date: 05 June 1979
• Docket Number: BRONX-LEBANON
• Citation: 70 A.D.2d 794,417 N.Y.S.2d 79
• Parties: Melita RIVERA, as Administratrix of the Estate of Ramon Rivera, Deceased, Plaintiff-Appellant-Respondent, v. TheHOSPITAL CENTER, Defendant-Respondent, and Martin W. Siegel et al., Defendants, and Ehsanoliah Benaresh, Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 79

417 N.Y.S.2d 79

70 A.D.2d 794

Melita RIVERA, as Administratrix of the Estate of Ramon Rivera, Deceased, Plaintiff-Appellant-Respondent, v.The BRONX-LEBANON HOSPITAL CENTER, Defendant-Respondent and Martin W. Siegel et al., Defendants and Ehsanoliah Benaresh, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

June 5, 1979.

F. R. Profeta, New York City, for plaintiff-appellant-respondent.

S. DiJoseph, New York City, for defendant-respondent.

J. L. A. Lyddane, New York City, for defendant-respondent-appellant.

Before FEIN, J. P., and SULLIVAN, BLOOM, LANE and LUPIANO, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, entered December 1, 1977, unanimously reversed on the law, on the facts and in the exercise of discretion and the action remanded for a new trial, with costs to abide the event.Appeals from orders entered May 31, 1977 and July 27, 1977, unanimously dismissed, without costs, as subsumed in the judgment and reviewed on the appeal therefrom.

On October 1, 1970, deceased, an employee of Bronx-Lebanon Hospital Center (Hospital) was struck by a motorcycle.He was taken to the Hospital at or about 6 p. m. in the evening of that day by his son.The examination conducted in the emergency room disclosed multiple fractures of the right lower extremity, including a subtrochanteric fracture of the right femur.It also indicated a long standing alcoholic problem, which had resulted in an advanced case of cirrhosis of the liver.He was admitted to the hospital at or about 9:30 that evening.

Deceased was a member of Local 1199 (Union).By reason of his membership in the Union, he was entitled to certain benefits from the Union's National Health Fund, which included payment for hospital, surgical and medical treatment in accordance with a prescribed schedule.Accordingly, upon his admission to the Hospital, he was given a semi-private room and the medical partnership of Hertzberg, Siegel and Biondi was assigned by the Hospital's Chief of Orthopedic Service as his attending surgeons.

A CBC (complete blood count) ordered by a resident indicated a deficiency in platelets, a blood substance which plays an important function in blood coagulation.A liver profile was then ordered.

The fracture of the neck of the femur required pinning which could be achieved only by an open reduction, so an operation was scheduled for October 5, 1970.Prior to the operation, a discussion was had of the deceased's case between Dr. Phaisal, a resident who had participated in treating the deceased prior to the operation, and Dr. Siegel, who was to perform the surgery.The surgery then proceeded with Dr. Benaresh in charge of anesthesia.On the evening of the day following the operation, the deceased began to hemorrhage internally, a condition which worsened considerably as the days progressed.On October 27, 1970, he died and this action followed.

Originally, the suit was brought against the Hospital and Drs. Siegel, Benaresh and Phaisal.Dr. Siegel died prior to service of the summons and complaint.No one was ever substituted for him.The action was discontinued against Dr. Phaisal prior to the commencement of the trial, leaving only the Hospital and Dr. Benaresh as defendants.

At the trial, plaintiff produced an expert who testified that the anesthetic used by Dr. Benaresh, halothane, should not have been used when a liver disease was indicated.He further testified that the performance of surgery without correcting the platelet inadequacy, without a medical consultation, and without obtaining the results of the liver profile, was improper medical practice.These conclusions were disputed at least in part by defendant's witnesses.

There was also conflicting testimony with respect to the relationship of Dr. Siegel and the Hospital insofar as concerned the doctor's treatment of deceased.The Hospital contended that Siegel acted solely as a private attending physician.In support of its contention, proof was offered that the doctor had submitted a bill for $1850 to the Local 1199 National Health Fund, together with an authorization from deceased to make payment.The director of the fund testified that payment in the sum of $487.50 had been made in accordance with its prescribed schedules.Plaintiff, on the other hand, contended that at the time the authorization was submitted to the deceased he was in such condition that he no longer was capable of understanding what he was doing.

The Trial Court correctly charged on the issue of concurrent negligence.However, at the insistence of plaintiff's counsel, he indicated that the Hospital could be held liable only for the actions of its employees, thus lumping together Siegel, the residents and all others who had accorded treatment to the deceased.He also instructed the jury that, if they found in favor of plaintiff and against one or more defendants, they were to return a single verdict against all defendants found to be liable and, should the issue arise, to apportion the amount of the recovery between the...