24 A.D.2d 930 | N.Y. App. Div. | 1965
Appeal from an amended judgment of the Court of Claims awarding respondent $25,000, without interest. Respondent, on November 30, 1956, while a patient at Creed-moor State Hospital, became involved in a verbal altercation with another patient. An attendant interceded in the argument and, in doing so, pushed appellant to the floor with such force that she was unable to get up. This attendant then left, and, after two patients had assisted her to a chair, two other attendants attempted to force her to walk and finally, when she proved unable to do so, pulled her down two flights of steps to the first floor and, when she refused to go on to the dining room, just left her. Thereafter,- a nurse and a man came by and placed respondent in a bed on the first floor. It was not until two days later that claimant was first observed by a doctor, and three days after the incident when an X ray was finally taken, and five days thereafter before a reading of the X ray was found to reveal a fractured femur, the bone having been shattered and the neck actually severed in two parts, with an overriding of the fragments and a marked shortening. On December 6, 1956 Dr. Young, an orthopedic consultant, was called, and on December 10 he inserted a Smith-Peterson nail and applied a Wilkie boot. It is conceded that he performed this operation without the availability of a portable X-ray machine (the hospital having none) which the medical testimony, indicated was “ an absolute necessity ” during this type of operation. On December 11 an X ray revealed that the fragments were still rotating and that the nail hod been driven through the head of the femur and acetabulum into the pelvic cavity. On December 12 the nail was removed and thereafter respondent suffered a series of medical complications including a prolonged period of drainage, “ Osteomyelitis with involvement of the femoral head and neck and acetabulum ”, “ staphylococcus albus from osteo ”, a skin condition, acute appendicitis, and removal of a diseased kidney. Then in 1961, after her discharge from Creedmoor, respondent fell and fractured the lower third of the femoral shaft. It was discovered that respondent had a three-inch shortening of the leg and a nonunion which could not be corrected because of an osteoporotic bone condition stemming from the osteomyelitis. Finally some union was established, “ but not sufficient for weight bearing.” In December, 1963 respondent recovered a judgment against Dr. Young for $26,410 and in February, 1965 the judgment here appealed against the State. The State contends that in view of respondent’s judgment against Dr. Young the recovery here on the grounds advanced by the Court of Claims amounts to a double satisfaction for the same injury and that, therefore, the award is necessarily excessive. Respondent cross-appeals from that portion of the judgment dismissing her claim that the State was negligent in contributing to or causing the- accident. We are constrained to agree with respondent’s contention. Respondent’s testimony established a prima facie case that the State’s negligence contributed to or caused the accident, and we find no basis here on which the court below could disregard such testimony even though respondent was an interested witness (Hull v. Littauer, 162 N. Y. 569; Lomer v. Meeker, 25 N. Y. 361). In addition, the State’s failure to call the attendants allegedly involved supports an inference that their testimony would not have been favorable to the State (Galbraith v. Busch, 267 N. Y. 230). Accordingly,
