SANGIOVANNI v. KOLOSKI (2006)

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J.), entered January 27, 2005, which, upon a jury verdict, is in favor of the defendants and against him, dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, the facts adduced at trial were insufficient to warrant a jury charge on the doctrine of res ipsa loquitur.   The nature of the testimony did not give rise to an inference of negligence based upon the mere occurrence of the adverse event at issue (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456;   Johnson v. Farr, 268 A.D.2d 560, 702 N.Y.S.2d 839;  Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 529 N.Y.S.2d 352).   Thus, the Supreme Court providently exercised its discretion in denying the plaintiff's request for a res ipsa loquitur charge.

Furthermore, the statements made by the defendant Eugene R. Koloski during trial did not constitute a judicial admission (but cf. Knutson v. Sand, 282 A.D.2d 42, 48, 725 N.Y.S.2d 350).   Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's request for a judicial admissions charge.