Boling v. Stegemann

Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J), entered August 3, 2005 in a medical malpractice action. The order granted plaintiffs motion seeking to set aside the jury verdict in favor of defendants Philip M. Stegemann, M.D. and the County of Erie and granted a new trial with respect to those defendants. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the verdict is reinstated. Memorandum: Plaintiff commenced this action to recover damages for injuries allegedly resulting from a burn on her skin that appeared immediately following orthopedic surgery at the Erie County Medical Center (ECMC). Supreme Court granted plaintiff s motion seeking to set aside the jury verdict in favor of Philip M. Stegemann, M.D. and the County of Erie (defendants) as against the weight of the evidence and granted a new trial on the issues of liability and damages with respect to defendants. That was error. At trial, each defendant offered expert testimony attributing the burn to the conduct of the other. According to Dr. Stegemann, the burn resulted from the use of an excessively hot IV bag as an axillary roll by staff of the ECMC to position plaintiff [1362] for surgery and, according to the County of Erie, the burn resulted from plaintiff’s lying on padding saturated with Betadine solution, a caustic substance. Plaintiff argued on summation that the fact that she was burned establishes negligence and that it was for the jury to decide “who, how, [and in] what percentage.” The first two questions on the verdict sheet were whether each defendant, respectively, was negligent, and whether such negligence was a substantial factor in causing any of plaintiffs injuries. The jury provided negative responses to each question. During argument of plaintiff’s posttrial motion, the court stated its view that the jury could find either or both defendants liable but that there was no rational basis to find neither liable. The court cited no authority for the proposition that the jury had to find at least one defendant responsible in a res ipsa loquitur situation in which each defendant controlled a different instrumentality, either of which could have caused a burn, and the charge, to which there was no objection, did not state that proposition. Although it is undisputed that plaintiff was burned, we conclude that a rational jury could find that plaintiff failed to prove circumstantially what caused the burn and thus failed to prove which defendant caused the burn. Reversal therefore is required, because it cannot be said that the evidence so preponderates in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). We note the well-settled principle that, while res ipsa loquitur permits an inference of negligence from circumstantial evidence, it “does not require the jury to infer that [a] defendant was negligent” (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). Stated differently, res ipsa loquitur is an “evidentiary doctrine that merely permits the jury to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent and may be rebutted with evidence from [a] defendant that tends to cast doubt on plaintiffs proof’ (States v Lourdes Hosp., 100 NY2d 208, 213-214 [2003], rearg denied 100 NY2d 577 [2003]). All concur except Gorski, J., who dissents and votes to modify in accordance with the following memorandum.