Amy L. Dowell, an Infant, by Robert V. Dowell, Her Guardian ad Litem, et al., Appellants, v. Harry T. Remmer, Jr., et al., Respondents, 22 A.D.2d 192

Per Curiam. This is an appeal by the plaintiffs from unfavorable determinations with respect to five causes of action alleged in one complaint. The causes of action are as follows: (1) by the infant plaintiff against all of the defendants, seeking damages for personal injuries; (2) by the father of the infant for his derivative claim against all of the defendants; (3) by Maralynn A. Dowell, mother of the infant, seeking damages for mental anguish against all of the defendants; (4) by Robert V. Dowell and Maralynn A.

Dowell, the parents of the infant, for damages for breach of contract against the defendants Remmer and the hospital; (5) by these same plaintiffs seeking damages for fraud against the defendant Remmer. At the close of all the proof, actions 1 and 2 were dismissed as to the hospital. At the close of all the proof, action 3 was dismissed as to all defendants. At the close of the plaintiffs’ proof, action 4 was dismissed as to the hospital, and at the close of all the proof, was dismissed as to the defendant Remmer. Action 5 was dismissed at the close of the plaintiffs’ proof.

The surviving issues of malpractice in actions 1 and 2 were submitted to the jury against the defendants Remmer and Manogue and resulted in verdicts of no cause of action in their favor. The appeal is, therefore, from this adverse jury verdict- and also from the various motions granted in favor of the defendants during the course of the trial. We find no error with respect to the court’s disposition of causes of action 3, 4, and 5, and affirm that portion of the judgment with respect to the dismissal of these causes of action.

It was error, however, to dismiss causes of action 1' and 2 against the hospital at the close of all the proof pursuant to CPLR 4401 since questions of fact were presented which required the determination of the jury. It cannot be said in this case that by no rational process could a jury base a finding in favor of the plaintiffs upon the evidence presented. (Blum v. Fresh Grown Preserve Corp., 292 N.

Y. 241.) We have no difficulty in finding that the verdict, in favor of the defendant doctors, was amply supported by the evidence and were it not for errors in the submission of these causes to the jury, we would affirm this portion of the judgment. The court in its main charge dealt with malpractice in a broad and generalized fashion. The nurses, employees of the hospital, played leading roles in performing professional and ministerial acts of which the plaintiffs complain. At no place in the court’s main charge is any reference made to the effect of those acts as bearing upon the doctors’ responsibility.

Following the main charge, the attorney for the plaintiffs made the following request: “In connection with the decision on your part with relation to the hospital, I respectfully request Your Honor to charge that the Jury be instructed it was the attending physician’s responsibility and duty to supervise the administration by the hospital nurses of the narcotics which he verbally ordered to be given to Mrs. Dowell, whatever the amount was.” In response to this request, the court then instructed the jury as follows: “ I presume that is so. The doctor has charge of the delivery, he gives the orders.

I would say so.” “ As I say, we thrashed that quite a bit in these recesses that we had. You see, the nurses are the employees of the hospital, there is no question about that, the hospital is responsible for their acts. When you come to the time of the doctor coming in, the physician or the obstetrician to take over, then he is the one who gives the orders, and that is the only way I can charge.

I tried to avoid it because I thought you Lady and Gentlemen would sense that, and I would not have to get entangled in that question on it. ’ ’ We do not say this would be error standing alone, but it must be considered in the light of a request by the defendants’ attorney and the instruction of the court given the jury immediately before. “ mb. bell: I think Your Honor probably covered it this morning too, but I respectfully request Your Honor to charge the Jury the mere fact that Your Honor decided on the law that the hospital’s case would not be submitted to the Jury, that the jury is not to infer that Your Honor has any opinion with regards to the liability or non-liability of the defendant doctors, the court: Yes.

There isn’t any mystery about my decision with respect to the hospital. I just concluded as a matter of law that whether or not the nurses had done something that was right or ivrong, negligent or not negligent, it didn’t contribute to this condition. That’s all I held. So that is no concern to you, as I said this morning, and the fact that Mrs. Dowell’s action has been dismissed by me has nothing to do with the merits of the case, either ’ ’. (Emphasis supplied.) The jurors began deliberation with the very last instructions given them being that the doctor was in charge and giving the orders to the nurses.

The obvious impression was that the doctors could be held responsible for the acts of the nurses. The court, however, had already advised the jury that whatever the nurses had done did not, as a matter of law, contribute to the condition of this infant plaintiff. Thus the very heart of the plaintiffs’ claims against the doctors was effectively cut out, for even if the jury found negligence as to the nurses which was imputable to the doctors, they could not find for the plaintiffs since the court said there was no causal relation.

This error is so substantial as to also require a reversal and a new trial as to the defendant doctors. In view of this conclusion, we do not reach or pass upon any other questions raised.