SIMMONS v. NEUMAN (2008)

In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated February 26, 2007, as denied her motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for medical malpractice after she allegedly suffered burns to her right thigh during surgery on her right shoulder.   After issue was joined, but prior to the completion of disclosure, the plaintiff moved for summary judgment on the issue of liability pursuant to the doctrine of res ipsa loquitur.   The Supreme Court denied such relief.   We affirm.

 To rely on the doctrine of res ipsa loquitur, a plaintiff must demonstrate that (1) the injury is of a kind that does not occur in the absence of someone's negligence, (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 (see Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143;  States v. Lourdes Hosp., 100 N.Y.2d 208, 211-212, 762 N.Y.S.2d 1, 792 N.E.2d 151;  Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494-495, 655 N.Y.S.2d 844, 678 N.E.2d 456;  DiGiacomo v. Cabrini Med. Ctr., 21 A.D.3d 1052, 1054, 803 N.Y.S.2d 587).   Since the doctrine concerns circumstantial evidence which allows, but does not require, the fact finder to infer that the defendant was negligent, “res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted” (Morejon v. Rais Constr. Co., 7 N.Y.3d at 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143).   Rather, “only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict.   That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable” (id.).   Here, on the limited record made, this standard was not met, particularly as to the second element of the doctrine.

The plaintiff alleged that she was burned by an item identified variously throughout the record as a “Bovie apparatus,” a “Bovie device,” and “Bovie pads.”   However, nothing in the record describes or explains that device, or its use, if any, during the surgery at issue.   Further, there are no relevant factual allegations concerning the surgery itself, such as the personnel involved in the surgery and their relationships, if any, or the responsibilities of each (see Fogal v. Genesee Hosp., 41 A.D.2d 468, 344 N.Y.S.2d 552;  Matlick v. Long Is. Jewish Hosp., 25 A.D.2d 538, 267 N.Y.S.2d 631;  cf. Rosales-Rosario v. Brookdale Univ. Hosp. & Medical Ctr., 1 A.D.3d 496, 767 N.Y.S.2d 122).   Consequently, summary judgment on the issue of liability was properly denied.