Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound

The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound.  The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions.  The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:

The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control …, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to “explain their actions and conduct in the operating room wherein plaintiff was injured” … . Accordingly, under these circumstances, the plaintiff’s reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine … . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14