Res Ipsa Loquitur and Medical Malpractice Defense
When an unexplained injury occurs in an area remote from the operative field while a patient is anesthetized, the doctrine of res ipsa loquitur may support an inference and will be considered in whether a prima facie case has been established.
January 16, 2024 at 09:42 AM
8 minute read
It is well recognized that to establish a prima facie case of medical malpractice, the plaintiff must establish, usually through expert testimony, both a departure from accepted standard of practice and proximately caused injury. Rivera v. Kleinman, 16 NY 3d 757, 759 (2011). Generally, the plaintiff fails to make out a prima facie case without proof of negligence and proximate cause and cannot place upon the defendants the burden of exculpating themselves. Galbraith v. Busch, 267 N.Y. 230 (1935). However, when an unexplained injury occurs in an area remote from the operative field while a patient is anesthetized, the doctrine of res ipsa loquitur may support an inference and will be considered in whether a prima facie case has been established. Fogal v. Genesee Hospital, 41 A.D. 2d 468 (4th Dept. 1973).
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