Kowalski v. Yiannou

— Judgment, Supreme Court, New York County (Joseph Harris, J.), entered March 21, 1991, which, after trial by jury in favor of the defendant, dismissed the complaint, reversed, on the law and the facts, without costs.

The plaintiff instituted this action to recover damages for injuries sustained as a result of the defendant’s purported negligence on two separate occasions. At trial, the plaintiff, a twenty-five year employee of Pan Am, testified that he began seeing the defendant, a staff physician with Pan Am, in the spring of 1986 for treatment of penile warts. The plaintiff alleged that during the treatment on May 28, 1986, the defendant knocked over a vial of acid and that the acid spilled onto his testicles, penis and legs. He screamed in pain and saw his flesh bubble. According to the plaintiff, the defendant waited five to ten seconds before treating his burns. The plaintiff then returned to the waiting room and showed his girlfriend the burns. She took photographs of his injuries the next day. The plaintiff further alleged that when he returned to the defendant’s office for further treatment of his warts on May 30, 1986, the defendant again spilled the acid. The burns later became infected.

At an examination before trial and at the trial itself, the defendant admitted spilling bichloracetic acid onto the plaintiff on May 28th, although he maintained that a much smaller amount spilled than that testified to by the plaintiff. The defendant described and demonstrated for the jury the treatment performed on the plaintiff by showing how he first painted the area around the lesion with vaseline to prevent the acid from touching healthy tissue and then how he placed the vial containing the acid between the plaintiff’s legs on the examining table. He further emphasized the need to be very careful in applying the acid, but added that the vial just flipped over onto the plaintiff. His medical records contained the following notation: "[T]ube caught on orange stick * * * spill on thighs of about two cubic millimeters * * * Linear blanching of the left inner thigh plus or minus two centimeters * * * and five millimeters wide at the top * * * going down to one millimeter at the bottom.” He then described the procedures he employed to treat the plaintiff’s burns.

With regard to his treatment of the plaintiff on May 30th, the defendant testified that he applied Podophyllin, a substance which does not burn the skin, to the warts with a Q-tip. He did not recall spilling the Podophyllin on this date and his medical records do not contain any such notation.

In its negative response to the first interrogatory put to it by the court with respect to both occasions, the jury found that the defendant was not negligent on either May 28 or May 30, 1986. It therefore, in accord with the court’s instructions, never went on to consider any issue of proximate cause or any issue concerning damages. The Supreme Court denied both the plaintiff’s motion for a directed verdict and his motion to set aside the jury verdict.

Even assuming, as supposed by the dissent, that the jury rejected the plaintiff’s testimony, it could not have reached its conclusion that the defendant was not negligent on May 28, 1986 upon any fair interpretation of the evidence (see, Johnson v Oval Pharmacy, 165 AD2d 587, lv denied 78 NY2d 859; Nicastro v Park, 113 AD2d 129). This follows, given the defendant’s admission that he placed the vial of acid between the plaintiff’s legs, spilled it on the plaintiff during the procedure, and then took measures to treat the burns, including the administration of an anesthetic. The medical records confirm these facts and actually describe the size and shape of the burns. The defendant’s own notes establish that his acts were the proximate cause of the plaintiff’s injury.

Unlike the plaintiff’s allegations concerning the defendant’s purported negligence on May 30th, there was no sharply conflicting evidence creating a factual dispute over what occurred on May 28th. Since the finding in favor of the defendant on the first cause of action lacked a rational basis and was without evidentiary support, the trial court should have set aside the verdict in favor of the defendant.

Accordingly, a new trial is ordered on the first cause of action alleging negligence by the defendant on May 28, 1986. Concur—Milonas, J. P., Rosenberger and Wallach, JJ.