On July 14, 2016 an upstate Appellate Court upset a partial victory for Saratoga Hospital which had succeeded in blaming a patient for the carelessness of its emergency room physician. The patient was brought to the ER complaining of a history of recurrent seizures. While on an examination table, the patient's Dad brought him a cup of hot coffee which spilled onto his lap causing 2nd and 3rd degree burns.

A plastic surgery consult occurred the following day and the patient was discharged with instructions to follow up with a regular physician in one week and a plastic surgeon within 2 weeks. Upon learning that the patient was discharged the plastic surgeon called him in and referred him to a burn center where the patient "underwent debridement and skin grafting surgery."

The jury decided that the ER doctor was not negligent in permitting the (seizure) patient to have the coffee. But the jury said that the ER doctor departed from accepted standards of care by failing to remove the patient's clothes and cool his skin immediately after the spill AND that this departure was a substantial factor in causing him harm.

The jury award was low - $25,000.00 for past pain/suffering and not a dime for future pain and disfigurement. Worse, the jury blamed the patient and said he was 90% responsible for the malpractice. Since the Hospital was only 10% liable, the plaintiff would only get $2500.00 The jury's verdict was odd because the Hospital attorney's didn't blame the patient for the ER doctor's malpractice. They only blamed the patient for accepting the hot coffee while on the examination table. But the patient lost that argument. This grossly unfair result required a retrial. 

 You could blame a patient for drinking hot coffee (that happened before the ER doctor committed malpractice) but not for the doctor's malpractice. "A plaintiff's prior conduct is not relevant since the defendant's liability extends only to that portion of the plaintiff's injuries attributable to the defendant's malpractice." Vallone v Saratoga Hospital, Appellate Division, Third Department.