86 A.D.2d 631 | N.Y. App. Div. | 1982
In a medical malpractice action, defendants Lavine and Rubins appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Zelman, J.), entered June 23,1980, as is in favor of the plaintiffs and against them, after a jury trial. Judgment reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, without costs or disbursements, and as between plaintiffs and defendants Lavine and Ru-bins, action severed and new trial granted. In September, 1975, while painting his house, plaintiff James Troy fell from a ladder and suffered a compound, comminuted fracture of the right ankle. He received treatment for his injury at Long Island Jewish-Hillside Medical Center and, while at the hospital and for some months thereafter, was under the care of defendant Dr. Walter Rubins. There is some dispute in the record as to whether Dr. Rubins himself terminated the treatment or whether, despite the doctor’s admonition that further treatment was necessary, Mr. Troy discontinued the treatment on his own. In any event, Dr. Rubins did not treat Mr. Troy after March, 1976. In June, 1976, Mr. Troy went to the Veterans Administration Hospital, where it was determined that he had a valgus deformity and that there was both a malunion and a nonunion in the ankle. As a result, bone graft surgery was performed at the Veterans Administration Hospital to correct the condition. Subsequently, plaintiffs commenced this action against Long Island Jewish-Hillside Medical Center, and against Dr. Rubins and three physicians associated with him. One of those physicians was Dr. Leroy Lavine. Thereafter, prior to trial, the action as against the hospital was voluntarily discontinued. At trial, plaintiffs contended that the defendant physicians had been negligent in that (1) they failed to operate on the ankle to correct the valgus deformity, (2) they improperly discharged Mr. Troy as a patient at a time when he was still suffering from a severe medical problem, and (3) they inadequately informed Mr. Troy about his condition and possible treatment. At the close of plaintiffs’ case, the action as against the three physicians associated with Dr. Rubins was dismissed on the ground that there was no evidence that any of the three had treated Mr. Troy. The trial thereupon proceeded with the case for defendant Rubins. Testifying in his own behalf, Rubins claimed that he had not discharged Mr. Troy and that he had given the plaintiffs a complete explanation of Mr. Troy’s condition and possible courses of treatment. In the course of cross-examination, Dr. Rubins testified that Dr. Lavine had seen Mr. Troy many times at the hospital. Dr. Rubins thereupon called Dr. Lavine as a witness, and Lavine confirmed that he had seen Mr. Troy at the hospital. Lavine expressed his view that the course of Troy’s treatment was proper. Following the presentation of expert testimony in support of Rubins’ contention that surgery on Mr. Troy was contraindicated, the defense rested. Plaintiffs thereupon moved to reinstate Dr. Lavine as a defendant. The motion was granted and defense counsel’s resulting application for a mistrial was denied. At the outset, we conclude, that it was a proper exercise of the trial court’s discretion to reinstate Dr. Lavine as a defendant in the action. Although initially plaintiffs had been unable to recall which physician, other than Dr. Rubins, had treated Mr. Troy in the hospital, that gap in the evidence, certainly critical as to the case against Dr. Lavine, was filled by Rubins and Lavine themselves. Furthermore, a hospital chart received in evidence indicated a number of visits made to Mr. Troy by Dr. Lavine. Thus, the trial court properly acted in the interest of justice by reinstating the action against Dr.