Practice point: The plaintiff developed a deep tissue Methicillin-resistant Staphylococcus aureus (MRSA) infection in her foot after the defendant podiatrist administered a cortisone injection into the bottom of her foot to treat her for plantar fasciitis. After a trial, the jury rendered a verdict in the defendant's favor.
The Appellate Division found that it was reversible error for the trial court to deny the plaintiff's request for a res ipsa loquitur charge. The plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. While the defendant presented expert testimony that an infection is a rare, but possible, complication of an injection which can occur in the absence of negligence, a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur. In addition, the plaintiff presented sufficient evidence to establish, prima facie, that the instrumentalities used for the injection were all under the defendant's exclusive control at the time of the injection, and that the injury was not the result of any action of the plaintiff.
Student note: The evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event. The doctrine derives from the understanding that some events ordinarily do not occur in the absence of negligence. To invoke the doctrine, a plaintiff must establish that the injury was caused by an agent or instrumentality within the exclusive control of defendant, and that no act or negligence on the plaintiff's part contributed to the happening of the event. Expert testimony may be 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.
Case: Bernard v. Bernstein, NY Slip Op 02084 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: An attorney's account stated claim.
