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Becker v. Eisenstodt

Decided: March 9, 1960.

WILLIAM BECKER, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF ARLENE BECKER, AN INFANT, PLAINTIFF-APPELLANT,
v.
LESTER EISENSTODT, DEFENDANT-RESPONDENT



Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff, individually and as guardian ad litem of his daughter Arlene, now 19 years old, brought an action against defendant, a physician and surgeon, charging negligence in administering a caustic during post-operative treatment of Arlene following a rhinoplasty, thereby severely burning and disfiguring her. The Law Division judge granted defendant's motion to dismiss at the close of plaintiff's case, with prejudice, and plaintiff appeals.

Arlene went to see defendant in October 1957 because she wanted to have the shape of her nose changed to eliminate a bump. As a result of arrangements made by her parents, she entered a Newark hospital on December 19, 1957, where defendant performed a plastic operation on her without incident. There is no claim that the operation was not properly performed. She was discharged two days later, wearing bandages and a cast on her face and nose.

On December 23 Arlene, accompanied by her mother, went to the doctor's office for post-operative treatment, on which occasion he removed some of the bandages and cleaned her nose inside and out. At his direction she returned with her mother on December 27, at which time defendant took a pledget of cotton and with a tweezer dipped it into one of

the bottles standing on a nearby tray. He then pushed the liquid-saturated pledget all the way up Arlene's right nostril. When she complained that it hurt, the doctor said, "Don't be a baby; I have other people to take care of." Her mother was present during the entire incident. The two then went out into the reception room and sat down. The cotton pledget was still in Arlene's nose. The mother noticed that a silvery liquid ran down the girl's nostril and wet her upper lip. Arlene was suffering such severe pain that the receptionist took her inside to lie down. Defendant eventually appeared, helped the girl into his treatment room, removed the wet pack, and swabbed out the nostril with pieces of cotton coated with some substance. He then bandaged Arlene's face and sent her home with the direction to return the next day. Mrs. Becker drove her daughter home, but had to stop several times on the way because of Arlene's great pain.

The two returned to the doctor's office the next day. Both testified that when he removed the bandages the girl's nose and upper lip were swollen, the flesh raw and the skin coming off. The doctor did not explain what had happened, but treated the condition with salve. This treatment continued until about mid-February. By that time the right nostril had contracted so that it was almost closed. Arlene testified that on her last visit the doctor made a cut in her nostril and inserted a hard rubber object. She said that when she cried he told her to get out of his office. Pictures taken shortly after this show the right nostril almost closed, a vertical scar running from the nostril to the right upper lip, and the edge of the lip drawn upward where the scar met it. The appearance of the lip approximated that of a harelip.

After Arlene had testified at some length, plaintiff's counsel called defendant to the stand and asked him the following questions:

"Q. Doctor, on December 27, 1957, when Arlene Becker came to your office, you inserted into her nose, the right nostril of her nose,

a pledget or a piece of cotton saturated with a ten percent solution of cocaine? A. That's right, sir.

Q. And nothing else? A. ...


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