dissents and votes to reverse the judgment insofar as appealed from and dismiss the complaint, with the following memorandum, in which Thompson, J., concurs. In this wrongful death action, predicated on alleged medical malpractice, the jury found no liability on the part of defendant Heinzen, a surgeon, and that the other defendants, the obstetricians, were fully liable. Inasmuch as this verdict is irreconcilably inconsistent and has no support in the record, the judgment should be reversed insofar as appealed from, and the complaint dismissed.
On April 24, 1974, plaintiff’s decedent, Maureen Tiernan, visited her obstetricians, a partnership consisting of Doctors Finn, Vosburgh and Kotarsky, in connection with a pregnancy and a peanut-size lump in her left breast. Dr. Kotarsky noticed the four- by five-centimeter lesion and referred Tiernan to Dr. Heinzen, a surgeon, for evaluation. On April 27, Heinzen examined her and determined that the lesion was benign.
The obstetrical group continued to monitor the mass and, on July 26, 1974, Dr. Finn noted that it had grown much larger. Heinzen saw Tiernan on July 31, 1974, performed a biopsy the next day and, upon ascertaining that there was a malignancy, performed a radical mastectomy. The cancer had spread, however, and following the birth of a child and extensive radiation therapy, Tiernan died in November, 1975.
Plaintiff’s theory at trial was that all defendants — the obstetrical group and Heinzen — were negligent in relying upon clinical judgment rather than requesting or performing diagnostic testing at the time of the initial examination. Yet, the jury exonerated Dr. Heinzen.*
The jury’s verdict is inconsistent and cannot be logically reconciled (see Pangburn v Buick Motor Co., 211 NY 228). By its verdict in Dr. Heinzen’s favor, it accepted his procedures and diagnosis that the mass was benign which did not have to be confirmed by biopsy and perforce rejected the plaintiff’s contention that a biopsy must be conducted in all cases involving a breast mass. It is, therefore, utterly illogical for the jury to have concluded that Dr. Heinzen was correct in his clinical judgment *649and at the same time find that the other defendants were negligent in relying on that same clinical judgment (cf. Graddy v New York Med. Coll., 19 AD2d 426, 429).
Moreover, plaintiff failed to prove a prima facie case against the obstetricians. The obstetricians could not be charged with liability for failure to perform an excisional biopsy because it was beyond the scope of their practice. According to the expert testimony offered by the plaintiff, biopsy was the only method which could have rendered a definitive diagnosis and that falls within the surgeon’s realm.
Other tests, such as thermography and sonograms, were unavailable at the time of decedent’s treatment and needle biopsies, the shortcomings of which were acknowledged by plaintiff’s expert, were considered unreliable and were not being performed in the medical community. Insofar as a mammogram was concerned, Dr. Heinzen testified that it was not wise to perform one during pregnancy and since the technique had not been fully developed and would not have revealed any finding more probative than the clinical impression, it was not indicated in this case.
In short, the record contains no evidence from which the jury could reasonably have concluded that the obstetricians were negligent in their treatment in this case (see Kinch v Adams, 38 NY2d 792, affg on opn at 46 AD2d 467; Ulma v Yonkers Gen. Hosp., 53 AD2d 626, 627; cf. Koehler v Schwartz, 48 NY2d 807). Accordingly, the judgment should be reversed, insofar as appealed from, and the complaint dismissed.
Heinzen entered into a settlement with plaintiff during trial.