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QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY.

The Second Department determined plaintiffs raised a question of fact in this medical malpractice action under the doctrine of res ipsa loquitur. Plaintiff contracted hepatitis C after a colonoscopy. There was evidence the patient defendant performed the procedure upon just before plaintiff’s procedure had hepatitis C, the disease is only transferred by contact with infected blood, and plaintiff was diagnosed after six weeks, the usual incubation period:

… [P]laintiffs relied on the doctrine of res ipsa loquitur, which is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Gonzalez v Arya, 2016 NY Slip Op 04693, 2nd Dept 6-15-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/MEDICAL MALPRACTICE (RES IPSA LOQUITUR, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)

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