Majority
p. 200Francis Gilbert, Appellant, v. Harry Klar, Respondent. Fourth Department, March 28, 1928.
Headnote
Depositions — physical examination — court has power to direct X-ray photograph to be taken.An order directing the plaintiff to appear before a designated doctor at the hospital and to permit an X-ray photograph to be taken of his injured elbow is affirmed. A physician or surgeon designated by the court should be permitted under proper restrictions to employ means in common use in the profession in making a physical examination and the court will take judicial notice that the X-ray is in common use in the medical profession.
Appeal by the plaintiff from an order of the Supreme Court, entered in the office of the clerk of the county of Erie on the 15th day of December, 1927.
Charles W. Strong, for the appellant.
Gibbons & Pottle [Frank Gibbons of counsel], for the respondent.
Appeal from an order directing plaintiff to appear before a designated doctor, who is roentgenologist at the Millard
p. 201
Fillmore Hospital in Buffalo, N. Y., and to permit an X-ray “ photograph ” to be taken of his right elbow. While the decisions of the State courts on the point are conflicting, we are of the opinion that the order should be affirmed. A physician or surgeon designated by the court or judge to make a physical examination of the plaintiff should be permitted, under such restrictions and directions as shall seem proper, to employ such means as are in common use in the profession. We may take judicial notice that the X-ray is in common use and that the science and art thereof have been developed to a point where, in the hands of specialists, there is little or no danger.
The order should be affirmed, with ten dollars costs and disbursements.
All concur. Present — Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ.
Order affirmed, with ten dollars costs and disbursements.