Opinion
December 29, 1961
Appeal from a judgment of Supreme Court, Broome County. In this action for negligence against a hospital the complaint alleged and the bill of particulars specified, that in the course of treatment of the plaintiff for a cut in the hand, a nurse, injecting tetanus toxoid, so used the needle that she "struck, injured and damaged important nerves in the plaintiff's arm". On the trial plaintiff's proof showed that tetanus antitoxin rather than tetanus toxoid was used in the injection; that the injection was given too close to the axillary nerve, rather than the needle's striking any nerve; and that the adverse physical consequence to the plaintiff was due, in the opinion of a doctor, to "placing this antitoxin solution in proximity to the axillary nerve". At the end of plaintiff's case he moved to amend the pleading to conform to the proof; this motion was denied; and although defendant's motion to dismiss the complaint was made both on the variance between pleading and proof and on the ground that no case had been established, it is entirely clear from the discussion that the court was actuated to grant the motion because it was of opinion that the case as proved differed so radically from the pleading that an amendment of the complaint could not be allowed. Since, however, the defendant's motion to dismiss was addressed to the sufficiency of the record as made, we examine that question first, for if no case is made out under plaintiff's proof the amendment to confirm with the proof would serve no purpose and the order of dismissal would be proper and would be affirmed. When the plaintiff's proof is looked at most favorably to plaintiff, as it must be to test its legal sufficiency, it could be found that the needle was inserted too close to the axillary nerve and that the injected material, flowing too close to the nerve, caused the adverse physical consequences of which plaintiff complains. The expert called by plaintiff testified that the injection should have been given "As close to the acromial process as possible, in the meat of the [deltoid] muscle, high up". Plaintiff himself indicated that the injection was given 3 1/2 inches below the edge of the acromial process and in the middle of the outer aspect of the arm. Defendant argues on appeal that this proof of location is unreliable; but this is a factual issue to be resolved, and we must accord plaintiff's description prima facie the most favorable inference which can be given it. Nothing in the record suggests the plaintiff was unable to demonstrate on his arm where the needle was injected. If it were found that the needle was inserted too low and too near the nerve and that the injected material put in at this site caused damage or injury to the nerve, we think a prima facie case is made out. The fact this is an extremely rare result is not a complete defense if the result is brought about by a wrong way of making the injection. Therefore cases heavily relied on by defendant dealing with unusual allergic effects of properly prescribed and properly administered injections do not control the situation shown by this record. In Perlmutter v. Beth David Hosp. ( 308 N.Y. 100), for example, it was noted that an injury resulting from a medical treatment "where no negligence or fault is present" (p. 107) is not a basis of liability. The treatment followed in Gielskie v. State of New York ( 10 A.D.2d 471, affd. 9 N.Y.2d 834) involved a risk which sound medical judgment suggested be taken in an emergency; and Gorlin v. Master Contr. Corp. ( 15 Misc.2d 1) involved the use of a serum which good medical judgment indicated should be used even at the risk of allergic reaction. But this is not a case of sound medical procedure with a risk assumed; it is on plaintiff's prima facie showing, a procedure carried out in the wrong place with damage attributed to its being done in the wrong place; and this is quite different from the theory of decision in the cases on which defendant relies. If a case has been shown on plaintiff's proof, the amendment to the pleading should have been allowed; or, at least, plaintiff should have been permitted to replead and retry the case. We do not think that the change from the pleading to the proof was very substantial or that it really disconcerted defendant or threw it off its guard in defending the case. When the plaintiff's case closed the difference between the tetanus toxoid pleaded and the tetanus antitoxin established became academic — the closeness of the needle and the injected material to the nerve, rather than the material itself, was the basis of the action under the proof. The real difference was that the complaint pleaded the needle struck the nerve, while the proof showed it came too near it and the injury was done by the proximity of the injected material. There is a difference here, but it is not one of great magnitude — essentially both specifications rest on the fact that the needle was inserted in the wrong place in relation to the nerve, and in our view the defendant would not be prejudiced in any substantial way by allowing the amendment. In any case, plaintiff would usually be allowed the right to replead rather than have his case dismissed absolutely on the merits for such a variance as this. Order and judgment reversed on the law and the facts and a new trial ordered with costs to abide the event, and plaintiff permitted to replead within 10 days. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.