Hozak v. St. Clare's Hospital , 54 A.D.2d 542 ( 1976 )

Judgment, Supreme Court, New York County, entered July 14, 1975, in favor of the defendants after a jury trial, unanimously affirmed, without costs or disbursements. Plaintiff brought this action to recover in damages for the wrongful death and conscious pain and suffering of plaintiffs decedent, Karel Hozak. The evidence adduced in this case did not reveal that the hospitals were derelict in their duties with regard to their treatment of Karel Hozak. Furthermore, there was sufficient evidence of plaintiffs contributory negligence in disregarding medical advice to justify instructing the jury on the law of contributory negligence (Hamilton v Presbyterian Hosp. of City of N. Y, 24 AD2d 563, 564; 61 Am Jur 2d, Physicians & Surgeons, § 108; 45 NY Jur, Physicians & Surgeons, § 171). While we note that the typewritten sentence on the police "aided” card reading "Dr. Wilkens, treated thereat [Lutheran Hospital] and aided was released” should have been covered prior to submission to the jury, the failure to do so does not rise to the level of reversible error. The Lutheran Hospital record admitted in evidence does not contradict that statement. Indeed, it was not the fact of the admission of Karel Hozak to the various hospitals which was disputed at the trial but, rather, the quality of treatment received. Similarly, we find that the court did not err in the admission of a St. Clare’s Hospital record relating to a psychiatric episode of Karel Hozak in July, 1969. The failure to produce this particular record pursuant to the subpoena was adequately explained. Furthermore, plaintiffs counsel has not shown, nor do we find, any prejudice to plaintiffs case by its late production. Concur&emdash;Markewich, J. P., Kupferman, Lupiano, Capozzoli and Lane, JJ.