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Supreme Court, Appellate Division, Fourth Department, New York.

Barbara HARRIS, Plaintiff-Appellant, v. Alok Kumar GUPTA, M.D., Tri-County Medical, P.C., and Little Falls Hospital, Defendants-Respondents.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., SMITH, GREEN, PINE, AND GORSKI, JJ. Defrancisco Law Firm, Syracuse (Jeff D. Defrancisco of Counsel), for Plaintiff-Appellant. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey of Counsel), for Defendants-Respondents Alok Kumar Gupta, M.D. and Tri-County Medical, P.C. Thuillez, Ford, Gold, Butler & Young, LLP, Albany (Karen A. Butler of Counsel), for Defendant-Respondent Little Falls Hospital.

Plaintiff commenced this medical malpractice action seeking damages for the alleged negligence of defendants in various aspects of their treatment of the infection in her left arm.   We agree with plaintiff that Supreme Court erred in granting defendants' motions for a directed verdict at the close of plaintiff's proof.   Plaintiff presented evidence establishing that, while she was a patient at defendant hospital, the nursing staff telephoned defendant physician at approximately 11:30 P.M. to report concerns with respect to symptoms associated with plaintiff's left arm.   According to the testimony of one of plaintiff's experts, the failure of defendant physician to examine plaintiff at that time was a departure from good medical practice, inasmuch as infection was part of his differential diagnosis.   Also according to that expert, defendant physician's negligence in that respect caused or contributed to plaintiff's damages.   With respect to defendant hospital, plaintiff established through the testimony of a second expert that the delay on the part of its nursing staff in telephoning defendant physician was a deviation from good nursing practice and that, because of the delay, plaintiff's infection was more severe than it would have been had it been treated when the nursing staff first noted the symptoms that were “red flags” that should have been brought to the attention of a physician.   Based on the expert testimony presented by plaintiff, it cannot be said that “it would ․ be utterly irrational for a jury to reach [a verdict in favor of plaintiff]” (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).   We therefore reverse the judgment, deny defendants' motions for a directed verdict, reinstate the complaint, and grant a new trial before a different justice.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motions for a directed verdict are denied, the complaint is reinstated, and a new trial is granted.