Majority
p. 575BRINKMAN v. KURSHEEDT. (Supreme Court, Appellate Term. November 6, 1903.) Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Headnote
1. Physicians—Action for Services—Defense of Malpractice.Where, in an action by a physician for services, the evidence was,, sufficient to raise an inference of malpractice, a verdict for defendantwill not be disturbed.
Appeal from Municipal Court, Borough of Manhattan, Tenth District.
Action by Morris W. Brinkman against Manuel A. Kursheedt for services rendered as a physician. From a judgment for defendant, plaintiff appeals. Affirmed.
Melvin H. Dalberg, for appellant.
Joseph Fettretch, for respondent.
The justice’s conclusion upon the affirmative defense of malpractice is not opposed to the weight of the evidence, in view of the condition of the patient as disclosed within a very few days after the treatment had been discontinued by the plaintiff. .The
p. 576
probability that the stone in the bladder were of sudden arising, due to a prior engysted condition, was not necessarily to be adopted, since that probability was met by the defendant’s testimony that the treatment was directed to some supposed abdominal trouble, and, so far, the physician’s failure to find the presence of stone in the bladder would not necessarily suggest that this actual condition, shortly afterward found in full development, did not then exist. Upon the proof submitted, an inference that the plaintiff failed to exercise the skill reasonably to be expected from a member of the profession in the community could easily be reached, and there is no ground for our disturbing the result.
Judgment affirmed, with costs. All concur.