Rochester Medical Malpractice and Personal Injury Lawyer Blog
As gynecologic malpractice cases involve complex facts and issues that are typically beyond the understanding of the average person, most medical malpractice cases rely on experts to prove liability. In some cases, however, gynecologic malpractice is so clear that expert opinions may not be necessary. Rather, the plaintiff will rely on the evidentiary rule of res ipsa loquitor, which means the thing speaks for itself. A New York court recently discussed res ipsa loquitor in a gynecologic malpractice case and explained what is needed to prove the defendant is liable under res ipsa loquitor. If you were harmed by gynecologic malpractice you should consult an experienced Rochester gynecologic malpractice attorney as soon as possible to discuss your case and what evidence you may need to recover.
Factual Scenario
Reportedly, the plaintiff underwent a hysterectomy, which was performed by the defendants. Approximately five months after the surgery, she underwent an MRI that revealed a cystic collection in her abdomen. She then underwent a procedure to drain the collection, which revealed that it was likely there was a surgical lap pad in her abdomen. As such, the plaintiff underwent surgery to remove the lap pad that was likely left behind during her initial surgery. The plaintiff subsequently filed a medical malpractice action alleging the facts required the application of Res Ipsa Loquitor
Res Ipsa Loquitor
Res ipsa loquitor is an evidentiary rule that allows the judge or jury to infer negligence based solely on the occurrence of an unusual event. Res ipsa loquitor arises often in medical malpractice cases where it is hard to prove causation. For res ipsa loquitor to apply the plaintiff must show that what happened is not an event that typically happens without negligence, the instrumentality that caused the harm was exclusively controlled by the defendant, and the plaintiff did not contribute to his or her own harm.
In the subject case, one of the defendants, a surgical scrub technician, filed a motion for summary argument, arguing that res ipsa loquitor did not apply to her. Specifically, she argued she was not present when the lap pads were counted and the plaintiff’s incision was closed. The court noted that in cases alleging res ipsa loquitor an expert opinion is not needed to determine whether negligent care was provided. Thus, the court found the defendant adequately supported her motion for summary judgment by offering evidence she was not involved in the surgery after the plaintiff’s incision was made.
Further, the court was not persuaded by the plaintiff’s expert, who opined that the defendant surgical scrub technician departed from the standard of care, noting that the report merely speculated that the defendant surgical scrub technician might have been the cause of the lap pad being left inside the plaintiff. Thus, the court granted the defendant’s motion for summary judgment.
Meet with a Seasoned Rochester Gynecologic Malpractice Attorney
If you suffered damages due to gynecologic malpractice you should speak with a seasoned Rochester gynecologic malpractice attorney regarding your case and what damages you may be able to recover. At DeFrancisco & Falgiatano Personal Injury Lawyers our trusted gynecologic malpractice attorneys will provide you with efficient and assertive representation to help you pursue any damages you may be able to recover for your harm. We can be reached at 833-200-2000 or via the online form to set up a time to discuss your case.
