57 A.D.2d 429 | N.Y. App. Div. | 1977
The suit is stated in two causes of action, the first for conscious pain and suffering by plaintiff-respondent’s decedent, resulting from defendant-appellant’s negligence which, it is asserted in the second cause, brought about the decedent’s wrongful death in defendant’s hospital. Plaintiff-respondent’s decedent, a young man of 17, was admitted to Metropolitan Hospital where, after tests, his ailment was diagnosed as acute viral hepatitis. His condition did not im
After surgery, the tubes of a respirator were placed inside the patient’s chest to maintain breathing and circulation. Within half a day, he had developed bilateral pneumothorax and, later, consequent lung collapse, because the "chest tubes were thin, soft and inadequate.” The patient died two days after the operation, the circulatory collapse following the lung collapse resulting from the defective tubes being one of the contributing causes of death. Considering the lesser burden of proof laid on a plaintiff in a wrongful death case (Noseworthy v City of New York, 298 NY 76), the jury was justified in inferring negligence from the use and operation of a respirator with defective tubes. The question was peculiarly one for triers of the fact (O’Neill v Montefiore Hosp., 11 AD2d 132). That the patient might well have died soon because of his generally debilitated condition, despite a transitory improvement from the liver transplant, cannot exculpate defendant from responsibility for negligently caused death at an earlier moment, and, even if the negligence in respect of the respirator was only one of the contributing causes of death, the death may be considered by the jury to have been attributable thereto (Dunham v Village of Canisteo, 303 NY 498, 504). So much for liability.
Lupiano, J. P., Silverman, Evans and Markewich, JJ., concur.
Judgment, Supreme Court, New York County, entered on June 27, 1974, unanimously modified, on the law and the facts, to strike that portion of the judgment attributable to the first cause of action, for conscious pain and suffering, and to vacate that portion of the jury’s verdict attributable to the second cause of action, for wrongful death, as excessive, and to remand the second cause for trial anew, as against the weight