Plaintiff administrator sues for wrongful death as a result of malpractice. Defendants are Maimonides Hospital and two private physicians who operated on the deceased and who had charge of her postoperative care. The first cause of action charges negligence in the performance of a Caesarean birth, with the consequence that a tetanus infection resulted, and in failure to take proper care of her thereafter. The second cause of action is for conscious pain and suffering. The third cause of action is by the plaintiff, husband of the deceased, individually for medical expense and loss of services.
The court submitted to the jury the following questions: 1. ‘ Were there any negligent acts on the part of any of the defendants at the time of the operation that resulted in the introduction of tetanus germs into the body of Mrs. Garafola? ”
2. “Was there any act of negligence on June 13th on the part of the hospital with respect to the care and treatment of Mrs. Garafola that resulted in her death? ” The jury answered both questions in the affirmative and found a general verdict in favor of plaintiff against all defendants.
Plaintiff’s case resolved into two distinct claims of negligence — first, the introduction of tetanus spores into the deceased’s body in the course of the operation; second, the failure to diagnose the nature of the infection with reasonable professional competence and to treat it adequately. The court, with painstaking care, analyzed the evidence and submitted to the jury the two questions above set out. It should be noted that negligence on the second ground relates only to the hospital and is confined to the events that took place on a single day, June 13.
The majority has found that, on the charge of negligence involved in the operation itself and embraced in the first question submitted to the jury, the plaintiff failed to establish a case. While the memorandum does not so state in haec verba, this is a necessary holding. There was no proof of how the tetanus spores came into-the deceased’s blood stream. If the inference was proper that it was in the course of the surgical incisions, any inference of negligence would be attributable with equal force to the doctors and the hospital personnel participating in the operative procedure. A ruling that no inference of *89negligence could be drawn from the testimony would therefore apply to all defendants, and a dismissal as to the individual defendants, the doctors, indicates that no cause of action on this branch of the case was established against anyone.
With that holding we are in accord. There is not a scintilla of evidence to rebut the showing that all the steps taken to insure antisepsis which are customarily used were taken. Nor is there any suggestion of any deviation from proper medical practice in this respect.
We turn now to the claim of negligence in regard to the events happening after the operation. It appears that the deceased continued under the care of her own physicians, particularly Dr, Prostkoff. The operation took place on June 7. On June 10 she developed some fever, which was successfully reduced. At 4:00 p.m. on June 13 the patient complained of soreness in the upper jaw region and difficulty in opening her mouth. At 7:30 p.m. of that day she was seen by a Dr. Weiss, a resident of the hospital. It may be safely assumed that he learned, or should have learned, of the deceased’s complaint. At any rate, he prescribed medication to relieve the pain or discomfort. On the morning of the 14th, Dr. Prostkoff visited the patient and was acquainted with this symptom. Thereafter, he took complete charge and the hospital physicians are not charged with any lack of care or dereliction of duty thereafter.
Plaintiff’s expert testified that on the 14th it was already too late and the deceased could not have been saved, and upon this contention no possible ground remained in the case for a claim of malpractice for anything done or omitted after June 13. Though plaintiff’s expert was critical of the steps taken on the 14th, it is quite clear that these could, on plaintiff’s theory, have no bearing on the death, and for that reason the court properly limited the claim of malpractice to the interval of time immediately following the report of the symptoms concerning the deceased’s difficulty with her mouth.
So the issue of the hospital’s liability depends on whether there was a failure on the part of its resident physician to diagnose the deceased’s condition as tetanus infection on the evening of June 13, and to take steps based on such diagnosis, or to notify her physician. As there is no proof or even claim that Dr. Weiss recognized the condition as tetanus infection, his failure, if any, was in not recognizing it. However, that this failure was malpractice is completely belied by the proof.
On the morning of the 14th Dr. Prostkoff saw the patient and learned that she suffered from stiffness of the jaw on the 13th. He did not make a diagnosis of tetanus infection, though he *90considered it as a remote possibility. Before making any such diagnosis, he called in specialists in the field. It appeared that no ease of tetanus infection following a Caesarean operation had ever been recorded in medical history, and the remoteness of the possibility caused a reluctance to resort to corrective measures unless they were indicated. Specialists in different fields examined the deceased during the day on the 14th. None of them made a diagnosis of tetanus infection, though all recognized it as a possibility. She was accordingly given a small dose of tetanus antitoxin. It was not until the following day that a definite diagnosis of tetanus was made. That evening she died.
The salient facts are that from the symptoms which became known to Dr. Weiss on the 13th none of the six physicians, four of them specialists in various fields, made a diagnosis of tetanus infection. True, all of them recognized at the time that there was such a possibility. But none recommended treatment on the assumption that the deceased was so infected. This assemblage of medical talent was called to treat the patient rather than to theorize and criticize after the event. They saw the patient several hours after Dr. Weiss had seen her and had the benefit of observing whatever developed in the interim. At that later time, none of them reached the conclusion that the jury found Dr. Weiss not only should have reached and acted upon but that his failure so to act evidenced actionable lack of medical knowledge. Clearly it would have been highly improper for Dr. Weiss to have adopted any radical course of treatment for another doctor’s patient. Doubtless his function would be to have given immediate advice of the development to the treating doctor. And there is no indication from any source that if Dr. Prostkoff had been informed of the symptom on the evening of the '13th he would have done anything different from what he did on the morning of the 14th.
Under these circumstances, the verdict against the hospital is clearly against the weight of the credible evidence and the verdict against it should be set aside and a new trial ordered.
Breitel, J. P., and Babin, J., concur with McNally, J.; Steuer, J., dissents in opinion, in which Valente, J., concurs.
Judgment modified, on the law, to the extent of dismissing the complaint as against defendants Abraham Prostkoff and Jessie M. Frankel, with $50 costs to said defendants, and, as so modified, affirmed, with $50 costs to plaintiff-respondent against defendant-appellant Maimonides Hospital of Brooklyn,