LEBRON v. James Mihalick, et al., Defendants. (1999)

Order, Supreme Court, New York County (Edward Lehner, J.), entered September 3, 1997, which, in accordance with a jury verdict, directed entry of judgment in favor of defendants St. Vincent's Hospital and Medical Center, Dr. Lisa Ross Washington and Dr. Warren Kraus, unanimously affirmed, without costs.

 The trial court properly refused to submit to the jury the issue of whether defendants were negligent in allegedly prematurely discharging plaintiff Clara Lebron.   Plaintiffs failed to adduce any expert testimony showing that negligent discharge from St. Vincent's Hospital proximately caused plaintiff's injury and, thus, failed to raise a factual issue with respect to that claim (see, Gross v. Friedman, 138 A.D.2d 571, 526 N.Y.S.2d 152, affd. 73 N.Y.2d 721, 535 N.Y.S.2d 586, 532 N.E.2d 92;  Esposito v. Jenson, 229 A.D.2d 951, 645 N.Y.S.2d 240).

 Likewise, the court properly rejected plaintiff's request to charge that an original tortfeasor is liable for any subsequent aggravation of the injury due to subsequent medical treatment, or even subsequent medical malpractice (PJI 2:305), since there was no factual basis for the charge.   No such claim was ever raised by any of the parties.   Indeed, even if the court had erred in not giving the charge, such failure would have been harmless in light of the jury's determination that none of the defendants were negligent (see, O'Neill v. Spitzer, 160 A.D.2d 298, 553 N.Y.S.2d 392;  Hitchcock v. Best, 247 A.D.2d 769, 770, 669 N.Y.S.2d 419).

 Finally, the jury's findings as to negligence and proximate cause as they relate to defendant St. Vincent's Hospital are not inconsistent and the record is clear that the jury found that the hospital's conduct did not cause plaintiff's injury.   Judgment was properly directed on behalf of St. Vincent's Hospital, despite the jury's failure to reach a verdict on the issue of negligence.   In any event, the jury's finding of a lack of causation was conclusive (see, Mayer v. Goldberg, 241 A.D.2d 309, 659 N.Y.S.2d 877;  Rosseland v. Hosp. of Albert Einstein Coll. of Medicine, 158 A.D.2d 409, 551 N.Y.S.2d 244).

MEMORANDUM DECISION.