Res ipsa loquitur  is one of those archaic Latin phrases that actually has meaning in the present day. Literally, it means that the thing speaks for itself.  What’s “the thing”? Negligence. When an injury occurs that could not have happened in the absence of negligence, and the instrumentality causing the injury is in the exclusive control of  the defendant, or wrong-doer behind the action, a fact finder may infer that the defendant was, in fact, liable. Black’s Law Dictionary , 1979, West Publishing Co., p. 1173.  In terms of medical malpractice, a physician has to make a hell of a mistake to warrant having this label applied to his or her work.  And that is why the theory is rarely used, and even more rarely taken seriously by judges.

But earlier this month in the Bronx, Justice Stanley Green found it applicable in the case of  Crispin v. Hostin .   The plaintiff came to orthopedist Dr. Hostin  for repair  of a meniscus tear, and of a partial ACL  tear (anterior cruciate ligament) in her right knee. Dr. Hostin initialed plaintiff’s right knee prior to the surgery when plaintiff reported for her procedure, and then began surgery on another patient. Unfortunately, the plaintiff awoke from anesthesia to find that the surgery had been performed on her left knee, instead of the intended right knee.  Dr. Hostin’s explanation? When he finished the earlier patient’s surgery and entered the operating area where plaintiff lay, he saw that the surgery had already been started by his physician assistant (PA), saw a torn meniscus in the live video of the procedure, and figured he would just direct his PA in how to complete the procedure. Only after completion of the wrong-site surgery did Dr. Hostin realize that something had gone wrong.  (The other defendants were PA Katanov, and the surgical facility, Surgi-Care.)

In a rare move, plaintiff’s counsel made a summary judgment motion, before any trial,  asking the Court to find Dr. Hostin negligent based on the doctrine of  res ipsa loquitur,  on the gournds that: “(1) surgery to the wrong knee does not occur in the absence of negligence/malpractice; (2) the ‘event’ (surgery on the wrong knee) was caused by, and solely due to, defendants while she was under their control; and (3) plaintiff (who was anesthetized and/or asleep during the surgery) played no part in the error.”  Defendants’ responses to plaintiff’s motion were unconvincing to Justice Green, to say the least. For the PA to operate on the wrong leg, despite the orthopedist’s markings, was “negligent as a matter of law.” For the Surgi-Care staff  to hold a “time-out” procedure, and still verify the wrong leg as the operative one, was also “negligent as a matter of law.” For Dr. Hostin to argue that his care conformed to the standard of care under the circumstances was “ludicrous.”   (Dr. Hostin had argued, among other things, that because the video screen showed a torn meniscus when he arrived in plaintiff’s operating room, which was consistent with the pre-operative diagnosis, he acted properly under the circumstances.) And so Justice Green ruled that on the issue of liability, plaintiff has already won.

Most medical malpractice cases are not so black and white. But when they are, it makes sense to move for summary judgement on liability, because it will often save time and money that would otherwise need to to be spent before resolving the case.

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