29 A.D.2d 666 | N.Y. App. Div. | 1968
In an action for assault against a physician, plaintiff appeals from a judgment of the, Supreme Court, Queens County, entered July 26, 1966, in favor of defendant upon the trial court’s dismissal of the complaint at the end of the plaintiff’s case upon a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact were considered on this appeal. In our opinion, whether the paper signed by plaintiff constituted a valid consent to defendant’s operation and treatment procedure, under the facts and circumstances here proved, constituted a question of fact for the jury. It was for the jury to determine whether an emergency situation occurred or was present which justified or excused defendant’s actions in performing a. hysterectomy and Caesarian section when engaged for delivery of a child (Schloendorff v. Society of New York Hosp., 211 N. Y. 125; Scott v. Kaye, 24 A D 2d 890; 56 ALR 2d 704). Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.
