Robert N. Garafola, as Administrator of the Estate of Florence Garafola, Deceased, Respondent, et al., Plaintiff, v. Maimonides Hospital of Brooklyn et al., Appellants, 22 A.D.2d 85

McNally, J. The court is unanimous in concluding that plaintiff failed to prove negligence on the part of defendants Abraham Prostkoff and Jessie M. Frankel. The case against them was submitted to the jury solely on the claim that the tetanus infection was consequent on the negligent surgical treatment of the decedent. The evidence enabled a finding of causal relation between the surgery and the onset of the infection but fails to establish negligence in the surgical procedures.

The cause was also submitted to the jury against the defendant Maimonides Hospital of Brooklyn on negligent failure to properly treat decedent on and after June 13, 1954. The evidence enabled the jury to find the following. Decedent was the patient of defendant Prostkoff, an obstetrician and assistant attending physician in obstetrics and gynecology of defendant hospital. Decedent was admitted for a repeat Caesarean

section at term; she had previously had a Caesarean section. The operation was performed June 7, 1954; a normal baby girl was delivered. On June 10, 1954 decedent ran a temperature attributed to engorged breasts. Antibiotics were administered; her temperature subsided and on June 13, 1954 it was below 100. At 4:00 p.m. on June 13, 1954 decedent complained of soreness in the upper jaw region and difficulty in opening her mouth. Decedent was seen by a resident of defendant hospital; palliatives were administered.

Decedent’s obstetrician was not informed of the last-described symptoms of which he was first apprised on his hospital visit on June 14,1954 at 10:00 a.m. On June 14, 1954, at 10:00 a.m., defendant Prostkoff made a tentative diagnosis of possible severe neuritis, possible throat infection, possible tooth infection and possible tetanus. Defendant Prostkoff remained with his patient throughout June 14, 1954 until late that evening, returned early the morning of June 15 and was in close attendance on her until her demise at 9:20 p.m. of that day.

Three thousand units of tetanus antitoxin were administered to the patient at 11:30 a.m:. on June 14; medical consultations were had, medication administered to prevent convulsions, a special nurse assigned, airways introduced to enable the patient to receive oxygen, and an oxygen tank made available in the patient’s room. Additional dosages of tetanus antitoxin were administered of 1,500 units on June 14 at 4:30 p.m:. and 50,000 units on June 15 at 1:30 p.m. The patient suffered a final convulsion at 9:15 p.m. of that day and expired five minutes thereafter.

The immediate cause of death was laryngospasm, caused by the tetanus toxin, resulting in pulmonary atelectasis, collapse of the lungs. The customary practice at the defendant hospital regarding medical supervision of patients is for the treating doctor to see his patient each day, and if the patient’s condition requires it, more often. In addition, the resident medical staff sees the patient at least once a day. If there is any significant adverse change in the patient, the treating doctor is promptly informed.

On June 13, 1954, at 4:00 p.m. the nurse and at 7:30 p.m. the resident knew the decedent complained of soreness in the upper jaw region and difficulty in opening her mouth. Codeine, nembutal and oil of wintergreen were administered. However, defendant Prostkoff, decedent’s treating doctor and assistant attending physician on the staff of defendant hospital, was not informed of the additional symptoms manifested by the decedent. Prostkoff first became aware of the significant changes in the decedent 18 hours later on June 14, 1954 at 10:00 a.m. (Cf. Murray v. St. Mary’s Hosp., 280 App.

Div. 803.) He immediately, continuously and intensively treated the patient as if she had a tetanus infection. Tetanus is a bacterial disease which thrives in enclosed deep wounds and liberates a poison which attacks the nervous system, causing irritability, spasms and convulsions. The absence of countermeasures, inclusive of tetanus antitoxin, within 24 hours after it is manifested, is fatal. Whether the 18-hour delay in the treatment rendered to the decedent as evidenced by this record was a competent producing cause of her death was a jury question.

This issue was ably, precisely and unequivocally presented to the jury by the trial court. The fact that the diagnosis of tetanus made on June 14 was tentative and one of several then made is of no consequence. The medical measures adopted and applied were as if tetanus was a possible cause of the decedent’s condition. The judgment should be modified, on the law, to the extent of dismissing- the complaint as against defendants Abraham Prostkoff and Jessie M. Frankel, with costs to said defendants, and, as so modified, affirmed, with costs to plaintiff.