The plaintiff was a patient of surgeon, Dr. Basal who while undergoing arthroscopic knee surgery admittedly placed a "hot mallet" on the plaintiff's thigh and stomach causing serious burns. Since the surgeon admitted the mallet was exceedingly hot and he felt it warm, the Court held as a matter of law that the surgeon knew or should have known not to place that mallet on his patient during surgery. Incredibly, the good doctor insisted he had not committed medical malpractice and tried to blame the operating room staff.
In a decision dated November 22, 2016, the Appellate Court agreed with the Bronx County trial court, that based on the surgeon's admissions during his deposition, the only issue to be tried by a jury is how much to compensate the patient/plaintiff for the burns to his stomach and thigh. The plaintiff will not be required to persuade a jury at trial that the surgeon was negligent because the result doesn't ordinarily occur in the absence of negligence, the plaintiff was blameless and the surgeon was in exclusive control of the "hot mallet". Legakis v. New York Westchester Square Medical Center