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Rosales-Rosario v. Brookdale University Hospital and Medical Center11/17/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Argued - October 10, 2003
DECISION & ORDER
(Index No. 6913/01)
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), dated October 31, 2002, which (*2)granted the defendants' separate motions for partial summary judgment dismissing the causes of action alleging medical malpractice based on the infliction of a burn insofar as asserted against them.
ORDERED that the order is reversed, on the law, with one bill of costs, the motions are denied, and the causes of action alleging medical malpractice based on the infliction of a burn are reinstated.
The plaintiff Roura Rosales-Rosario (hereinafter the injured plaintiff) sustained a burn on the inner portion of her right knee while hospitalized to give birth. The record reflects that she was heavily sedated, underwent a vaginal examination performed by the defendant Dr. Milagros Benedicto, and then received an epidural anaesthetic from physicians and nurses employed by the defendant Brookdale University Hospital and Medical Center which numbed her from the waist down. She discovered the burn upon awaking from her sedative-induced sleep. The cause of the injury was not identified, although some evidence in the record suggests that an overhead examination lamp in the labor and delivery room might have been responsible. The defendants denied employing the lamp in the course of their examinations and treatment of the injured plaintiff. Hospital records and deposition testimony indicate that Dr. Benedicto and medical employees of the hospital entered and exited the injured plaintiff's room several times in the two-hour period between the time the epidural anaesthetic was administered and the time the injured plaintiff awoke to discover the injury.
The plaintiffs commenced this medical malpractice action relying in part on the doctrine of res ipsa loquitur and alleging that the defendants deviated from good and accepted medical practice both in inflicting the burn and in failing properly to treat it thereafter. The defendants separately moved for partial summary judgment dismissing the causes of action alleging medical malpractice based on the infliction of the burn arguing that the plaintiffs failed to establish the requisite elements of res ipsa loquitur. The Supreme Court granted the defendants' motions. We reverse.
The Supreme Court erred in finding that the plaintiffs did not establish the requisite elements of the doctrine of res ipsa loquitur. To rely on the doctrine, a plaintiff must submit sufficient proof that (1) the injury is of a kind that does not occur in the absence of someone's negligence, (2) the injury is caused by an agency or instrumentality within the exclusive control of the defendants, and (3) the injury is not due to any voluntary action on the part of the injured plaintiff (see Kambat v. St. Francis Hosp., 89 NY2d 489, 494; Babits v Vassar Bros. Hosp., 287 AD2d 670, 671). The doctrine is generally available to establish a prima facie case when an unexplained injury (*3)in an area which is remote from the treatment site occurs while the patient is anaesthetized (see Babits v. Vassar Bros. Hosp., supra; Hill v Highland Hosp., 142 AD2d 955; Mack v. Lydia E. Hall Hosp., 121 AD2d 431; Fogal v. Genesee Hosp., 41 AD2d 468, 475).
Infliction of a blistering burn on the inner portion of the injured plaintiff's right knee during or shortly after a vaginal examination and administration of an epidural anaesthetic is an event that
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