Gramza v. Gajewski

Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: This record presents several sharp conflicts in testimony which were quite properly submitted to the jury on the issue of credibility. The verdict should not be disturbed as being against the weight of evidence, as urged by appellants. Regretfully, the undue restriction by the court of testimony offered by appellants’ physiotherapist and the court’s improper comments as to the witness’ qualifications and professional status make a new trial necessary. The witness was a duly accredited physiotherapist, licensed by the Education Department of the State, who not only held a bachelor’s degree, but had done graduate work in neuroanatomy, physiology and rehabilitation processes. The court’s refusal to permit testimony as to his observations regarding muscle spasm, comments by the court of the use of mieritherm and ultrasound such as “I didn’t know you wired a patient for sound”, not permitting a description of traction treatment by cervical rotation and flexion, characterizing the witness as “only a rubber” and drawing an analogy between how “Edgar Bergen twists the head of Charlie McCarthy” and the treatment rendered by the witness all served to depreciate the professional standing of the witness and were highly prejudicial to appellants’ case. “Physiotherapy in its general sense is ‘ the treatment of disease by physical remedies rather than drugs’ and its practice is the practice of medicine in that limited field. (People v. Mari, 260 N. Y. 383, 385; People v. Dennis, 271 App. Div. 526.) ” (Matter of O’Neill v. Board of Regents, 272 App. Div. 1086, opp. dsmd. 298 N. Y. 777.) The failure of the court to recognize this fact requires the granting of a new trial. (Appeal from judgment of Erie Trial Term dismissing the complaint upon the merits, in an automobile negligence action.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Veeehio, JJ.