Tammy Trees secured a dismissal of the Complaint on plaintiff’s res ipsa loquitur claims in a matter venued in Suffolk County involving treatment by a gastroenterologist. 

Plaintiff commenced this action to recover damages for injuries to his shoulder and arm that he allegedly sustained while undergoing a biopsy of his pancreas.  Plaintiff asserted a single cause of action for res ipsa loquitur alleging that when the effects of anesthesia wore off, he felt “excruciating pain in his left hand, wrist, arm and shoulder” from positioning on the table, and that his injury was of a kind that does not occur in the absence of negligence.  

Ms. Trees moved pursuant to CPLR 3211(a)(7) to dismiss the Complaint for failure to state a cause of action.  She put forth two arguments in support of the dismissal, i.e., that the event was not of a kind that ordinarily occurs in the absence of someone’s negligence and the instrumentality that caused the injury was not within the defendant’s exclusive control.  As plaintiff’s sole claim was for res ipsa loquitur, she further argued that res ipsa loquitur is an evidentiary doctrine and not a separate theory of liability, rather, it is a “common-sense application of the probative value of circumstantial evidence”.

In an Order entered with the Clerk of the Court on March 3, 2025, Justice Joseph Farneti granted Ms. Trees’ motion to dismiss.  The Judge found that the bed and the room where plaintiff was located for the biopsy were not in exclusive control of the gastroenterologist as would be required for plaintiff to assert res ipsa loquitur.  As such, Justice Farneti dismissed the Complaint against the gastroenterologist.