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RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming the grant of summary judgment to the defendants in this medical malpractice action, explained the criteria for the applicability of the doctrine of res ipsa loquitur in this context:

In opposition to the defendants’ motion, the plaintiff relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . A plaintiff “need not conclusively eliminate the possibility of all other causes of the injury” … . A plaintiff must only show that the likelihood of other possible causes of the injury is so reduced ” that the greater probability lies at defendant’s door'” … .

Here, the redacted and unsigned affirmation of the plaintiff’s medical expert was not entitled to consideration … and, in any event, was insufficient to raise a triable issue of fact. The plaintiff failed to raise a triable issue of fact regarding the applicability of the doctrine of res ipsa loquitur, as she did not demonstrate that the injury is of a kind that ordinarily does not occur in the absence of negligence or that the instrumentality that caused her injury was within the defendants’ exclusive control … . Pagano v Cohen, 2018 NY Slip Op 05599, Second Dept 8-1-18

MEDICAL MALPRACTICE (RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))

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