Topel v. New York Infirmary-Beekman Downtown Hospital

Order, Supreme Court, New York County (Ira Gammerman, J.), entered October 28, 1991, which granted plaintiff’s motion to set aside the verdict as to defendant hospital only, unanimously affirmed, without costs.

The issues involved in the first interrogatory submitted to the jury did not include, as defendant hospital would have it, whether plaintiff’s subluxation was traumatic or chronic, but only whether the initial emergency room x-rays revealed a subluxation that should have been detected, and, if so, whether *463plaintiff should have been admitted to the hospital. Upon a review of the record, we agree with the trial court that the jury’s findings in favor of defendant hospital on these issues were against the weight of the evidence. However, the basis for finding negligence on the part of the hospital, that the initial x-rays were misread, does not apply to defendant Ho, and, as to him, the verdict was properly upheld. Concur— Sullivan, J. P., Rosenberger, Wallach and Rubin, JJ.