24 N.Y.2d 427 (1969)

Josephine Flanagan, Appellant, v. Mount Eden General Hospital et al., Respondents.

Court of Appeals of the State of New York.

Decided April 17, 1969.

Attorney(s) appearing for the Case

Joseph P. Napoli and Harry H. Lipsig for appellant.

William F. McNulty for Mount Eden General Hospital, respondent.

George van Setter for Sarah Lee Ancell and another, respondents.

Chief Judge FULD and Judges BURKE and BERGAN concur with Judge KEATING; Judge BREITEL dissents and votes to affirm in an opinion in which Judges SCILEPPI and JASEN concur.


Josephine Flanagan, in June of 1958, was under the care of Dr. Max Eisenstat for a gall bladder ailment. Dr. Eisenstat determined that an operation was necessary, and the plaintiff entered Mount Eden General Hospital for that purpose. On July 14, 1958 the operation was performed. During the course of the operation surgical clamps were inserted in the plaintiff's body.

In the spring of 1966...

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