John Kennedy, Appellant, v. Syosset Hospital et al., Respondents, et al., Defendants

John Kennedy, Appellant, v Syosset Hospital et al., Respondents, et al., Defendants. [MAJORITY] — In a medical malpractice action, plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County (Robbins, J.), entered August 25, 1980, as is in favor of defendants Syosset Hospital and Nicholas Poloukhine and against him (1) upon the trial court’s dismissal of the complaint as against Poloukhine at the close of the evidence, and (2) upon a jury verdict in favor of the defendant hospital. Judgment affirmed, insofar as appealed from, with one bill of costs. No opinion. Weinstein, Thompson and Rubin, JJ., concur. [CONCURRENCE — Gibbons, J. P.,] Gibbons, J. P., concurs in part and dissents in part, with the following memorandum: I vote to modify the judgment by reversing so much thereof as dismissed the complaint as a matter of law agáinst the defendant Nicholas Poloukhine, M.D., and to direct a new trial as to said defendant. Under the posture of the medical evidence adduced at the trial, it was established that an intrusion on the L5 lumbar nerve root, in the course of the operation, would represent a lack of ordinary care and produce injury to the patient. The respondent physician testified in the same vein that, if the operation were performed with reasonable care, there would be no involvement with the L5 lumbar nerve root. On this issue, Dr. Steven H. Horowitz, a neurologist, testified that the operative procedure performed by the respondent physician produced damage to the L5 lumbar nerve root and caused the subsequent weakness in dorsiflexion of the plaintiff’s right foot. In view of this testimony, coupled with the statement by the respondent physician that he had changed his operation notes and the hospital records to read SI instead of L5, because they were originally so dictated by mistake, it was error for the trial court to have dismissed the complaint, at the close of the evidence, as a matter of law as to the respondent physician. Under the circumstances, the issues of fact so presented should be resolved at a new trial.