The Jacob D. Fuchsberg recently prevailed in a summary judgment motion brought by defendants to dismiss our client’s case. The case involved the negligent performance of a hemimaxillectomy and immediate reconstruction with scapula microvascular fragments on a right-hand dominant woman, following her diagnosis of a right palatal squamous cell carcinoma, which resulted in a brachial plexus injury to her right shoulder and significant limitations in right shoulder and arm that impaired the ability to perform activities of daily living.

What is the res ipsa loquitur doctrine?

Our office argued that the doctrine of res ipsa loquitur was applicable to this case. Under this doctrine, “the law allows a jury to consider circumstantial evidence and infer that the defendant was negligent in an unspecified way” Morejon v. Rais Construction Co., 7 N.Y.3d 203, 205-206 (2006). Consequently, an inference of negligence may be drawn solely from the happening of the accident upon the theory that “certain occurrences contain within themselves a sufficient basis for an inference of negligence” Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226 (1986).

To rely on this doctrine the plaintiff must met the burden of proof of showing enough evidence to support three conditions to “afford a rational basis for concluding that is more likely than not that the injury was caused by defendant’s negligence” Antoniato v. Long Island Jewish Med. Ctr., 58 AD3d 18 652, 655 (2d Dept. 2009); Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 494 (1997). The plaintiff does not have to conclusively eliminate the possibility of all other causes, “but only that their likelihood must be so reduced that the greater possibility lies at defendant’s door” Dermatossian, 67 N.Y.2d at 226 (2d Dept. 1986).

Plaintiff’s Burden in the res ipsa loquitur doctrine

The plaintiff must first: (1) demonstrate that “the injury-causing event be of a kind that ordinarily does not occur in the absence of negligence” States v. Lourdes Hosp., 100 N.Y.2d 208, 210 (2003).

In our case, the client did not have a history of right shoulder or arm injury prior to the surgery. However, after waking up from the procedure, she felt shoulder pain, weakness, and was unable to raise her right arm. The medical providers at defendant’s facility diagnosed her with a Brachial Plexus Disorder after the surgery, even though they did not provide an explanation for this condition. Defendants had the duty to ensure the patient’s safety during her operation and thus undertake all the necessary precautions to avoid preventable injuries.

Accompanying the motion, we submitted an expert affirmation from a Board Certified in Otolaryngology-Head and Neck Surgery opining that the defendants deviated from accepted standards of care and detailing the manner such deviations caused the brachial plexus injury, which did not occur in the absence of negligence with the performance of the subject procedure. See States, 100 N.Y.2d at 210 (“[E]xpert testimony may be properly used to help the jury ‘bridge the gap’ between its own common knowledge . . . and the common knowledge of physicians …”).

After meeting the first prerequisite, the plaintiff must then submit sufficient proof that (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” Rosales-Rosario v. Brookdale Univ. Hosp. & Med. Ctr, 1 A.D.3d 496 (2d Dept. 2003); see also Kambat v. St. Francis Hospital, 89 NY2d 489, 494 (1997); Dermatossian, 67 N.Y.2d at 226.

In our case, we set forth sufficient evidence to establish from the medical records and defendants’ testimony that the operating room, surgical instruments, positioning tools, the patient’s body after she was sedated, and the surgical procedure itself were under Defendants’ joint and exclusive control throughout the surgical procedure. The plaintiff is not required to identify the specific negligent party who exercised control at a particular time as all Defendants were present in the Operating Room throughout the surgery. See Schmidt v. Buffalo Gen. Hosp., 278 A.D.2d 827,828 (4th Dept. 2000) (“In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor”).

Lastly, we offered proof that plaintiff did not engage in any voluntary action that caused her injuries or contributed to the same, which was demonstrated through her medical records showing no prior medical history that could have caused, contributed and/or exacerbated by her brachial plexus injury and the fact that she was sedated throughout the procedure.

Judge Denies Defendants’ Motion to Dismiss

The deciding judge found, although untraditional, that the doctrine of res ipsa loquitur was applicable to this case, and denied defendants’ motion to dismiss the medical malpractice claim, holding that, having met the second and third elements, the plaintiff’s expert opinion was sufficient to create an issue of material of fact as to the first element of res ipsa loquitur to be decided by a jury at trial.

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