DUNN, Justice. After a jury verdict and judgment for defendant, plaintiff, special administrator of the estate of decedent Dezso Csoka, moved for a new trial, and the motion was denied. Plaintiff appeals from the judgment. We affirm. The facts of this case are fully set forth in Fjerstad v. Knutson, 271 N.W.2d 8 (S.D. 1978). Briefly stated, Dezso Csoka, the decedent, went to the emergency room of Sioux Valley Hospital on July 4, 1973, suffering with a severe sore throat. Knutson, an intern at that time, examined the decedent and ordered a blood test and throat culture. He gave the decedent a prescription for an antibiotic, Erythromycin, and released him from the emergency room. This was in violation of the hospital's policy of not releasing an emergency room patient until the on-call physician or the patient's local doctor had been consulted. Knutson had attempted to contact the on-call physician by telephone but was unable to reach him. Dezso Csoka died in his sleep that night. The autopsy revealed that his death was caused by asphyxia as a result of swollen larynx, tonsils and epiglottis. The jury found in favor of the hospital and Dr. Knutson. On appeal, that portion of the judgment that found Dr. Knutson not liable was affirmed, but the portion of the judgment entered in favor of Sioux Valley Hospital was reversed and remanded for a new trial.
