Kathleen States et al.,
Appellants,
v.
Lourdes Hospital, a Daughter of
Charity Hospital, et al.,
Defendants,
and Riverside Associates in
Anesthesia P.C. et al.,
Respondents.
2003 NY Int. 57
The first prerequisite for invocation of the doctrine
of res ipsa loquitur, and the inference of negligence it permits,
is that the injury-causing event be of a kind that ordinarily
does not occur in the absence of negligence. In Kambat v St.
Francis Hosp., we held that res ipsa loquitur was available in "a
narrow category of factually simple medical malpractice cases
[requiring] no expert to enable the jury reasonably to conclude
that the accident would not happen without negligence," but left
for another day the question of "whether expert testimony can be
used to educate the jury as to the likelihood that the occurrence
would take place without negligence where a basis of common
On July 25, 1995, plaintiff Kathleen States underwent surgery at Our Lady of Lourdes Hospital in Binghamton for removal of an ovarian cyst. The cyst was successfully removed. The surgeon, as well as the hospital, are no longer defendants in this action. However, plaintiff alleges that, during the operation, her anesthesiologist and his practice group (collectively "defendant") injured her right arm.
Prior to surgery, plaintiff's right arm was placed on a
board, extended outward from her body and rotated. Defendant
then inserted an IV tube into her right hand in order to
administer anesthesia. Plaintiff complained of pain and a
burning sensation when the tube was inserted, but surgery
proceeded and there is no record of any untoward event involving
plaintiff's arm. Nonetheless, when plaintiff awoke, she
complained of increasing pain in her right arm and shoulder.
Plaintiff has since been diagnosed with right thoracic outlet
syndrome and reflex sympathetic dystrophy. The cause of the
injury is in dispute; however, plaintiff alleges negligence in
At the close of discovery, defendant moved for summary judgment on the ground that there was no direct evidence that plaintiff's arm was hyperabducted during surgery and no evidence of any other negligence. Conceding the absence of direct evidence of negligence, plaintiff opposed the motion, submitting expert medical opinion that her injuries would not have occurred in the absence of negligence. Plaintiff claimed this testimony could be used by a jury in support of a res ipsa loquitur theory.
Supreme Court denied defendant's motion for summary judgment, citing Kambat for its conclusion that a jury could rely on the expert medical opinion to support the conclusion that the injury would not have occurred in the absence of negligence (188 Misc 2d 420). A divided Appellate Division reversed, the majority holding that the inference was not permitted since plaintiff's injury was not the sort as to which a jury could draw upon its common knowledge and experience to conclude that it would not have occurred in the absence of negligence (297 2 450). Plaintiff appeals as of right from the Appellate Division order based on a two-Justice dissent, and we now reverse.
Under appropriate circumstances, the evidentiary
doctrine of res ipsa loquitur may be invoked to allow the
factfinder to infer negligence from the mere happening of an
This appeal concerns the first of the three required elements. Defendant contends that res ipsa loquitur cannot apply here because, in order to establish the first prerequisite -- that the occurrence would not take place in the absence of negligence -- plaintiff must rely on expert medical opinion, and the doctrinal foundation of res ipsa loquitur can only lie in everyday experience. Therefore, when expert testimony is necessary to provide the basis for concluding that the event would not occur in the absence of negligence, the matter is outside the ken of a layperson and res ipsa loquitur is inapplicable.
In the circumstances presented, we conclude that expert testimony may be properly used to help the jury "bridge the gap" between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does ( see Connors v Univ. Assocs. in Obstetrics & Gynecology, Inc., 4 F3d 123, 128 [2d Cir. 1993]). Our conclusion not only is supported by a majority of courts that have considered the question,[1] but also is the approach adopted by the Restatement of Torts:
"In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which
the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion" (Restatement [Second] of Torts, § 328 D, comment d; see also Prosser and Keeton, Torts § 39, at 247 [5th ed]).
In an increasingly sophisticated and specialized society such as ours, it is not at all surprising that matters entirely foreign to the general population are commonplace within a particular profession or specially trained segment of society. The fact that the knowledge is specialized, however, does not alter its pervasive nature among those with the proper training and experience ( see Connors, 4 F3d at 128). As the New Jersey Supreme Court stated in Buckelew, "[e]xpert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the 'common knowledge' of lay persons" (87 NJ at 527).
Notwithstanding the availability of expert testimony to
aid a jury in determining whether an event would normally occur
in the absence of negligence, expert opinion of course does not
negate the jury's ultimate responsibility as finder of fact to
As advantageous as the res ipsa loquitur inference is for a plaintiff unable to adduce direct evidence of negligence, application of the doctrine does not relieve a plaintiff of the burden of proof. It is an evidentiary doctrine that merely permits the jury to infer negligence based on a well-founded understanding that the injury-causing event would not normally occur unless someone was negligent and may be rebutted with evidence from defendant that tends to cast doubt on plaintiff's proof ( see Dermatossian, 67 NY2d at 226).
Applying the foregoing principles to the facts of this
case, we conclude that defendant's motion for summary judgment
was properly denied by Supreme Court. The jury should be allowed
to hear from plaintiff's experts in order to determine whether
this injury would normally occur in the absence of negligence.
Likewise, defendant must be given an opportunity to rebut the
assertion with competent expert evidence to show, for example,
Plaintiff alternatively argues that circumstantial evidence of defendant's negligence was sufficient to defeat summary judgment even without application of res ipsa loquitur. In light of the foregoing, we need not reach this argument.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion of defendants Riverside Associates in Anesthesia, P.C. and Kenneth Mintz, M.D. for summary judgment denied.
1 Currently, a majority of states to have considered the question allow expert testimony to supplement a jury's understanding of whether an injury would normally occur in the absence of negligence ( see e.g. Kerr v Bock, 5 Cal 3 321, 324, 486 P2d 684, 686 [1971]; Walker v Rumer, 72 Ill 2d 495, 500, 381 NE2d 689, 691 [1978]; Jones v Poretta, 428 Mich 132 154, 405 NW2d 863, 874 [1987]; Buckelew v Grossbard, 87 NJ 512, 525-528, 435 A2d 1150, 1157-1158 [1981]; Mireles v Broderick, 117 NM 445, 447-449, 872 P2d 863, 865-867 [1994]; Morgan v Children's Hosp., 18 Ohio St 3 185, 189, 480 NE2d 464, 467 [1985]; Jones v Harrisburg Polyclinic Hosp., 496 Pa 465, 472-473, 437 A2d 1134, 1138 [1981]; Hoven v Kelble, 79 Wis 2 444, 452, 256 NW2d 379, 383 [1977]). A minority allow the inference only when the matter lies within the ken of a layperson ( see e.g., Le Pelley v Grefenson, 101 Idaho 422, 426, 614 P2d 962, 966 [1980]; Orkin v Holy Cross Hosp. of Silver Spring, Inc., 318 Md 429, 433, 569 A2d 207, 209 [1990]; Todd v Eitel Hosp., 306 Minn 254, 260-261, 237 NW2d 357, 361-362 [1975]; Haddock v Arnspiger, 793 SW2d 948, 951 [Tex 1990]).