Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) clients, a Middletown, NY-based gastroenterologist and the practice to which the physician belongs, were sued for failing to seal a polypectomy site during colonoscopy.
The plaintiff’s complaint included allegations of medical negligence, but their Poughkeepsie-based attorney’s Certificate of Merit stated that the plaintiff would rely solely on the doctrine of res ipsa loquitur. There is a narrow scope of malpractice cases to which the doctrine applies, and this is not one of them. To prevail on the theory, the plaintiff must satisfy three elements, the first being that the injury is of a kind that does not occur in the absence of someone’s negligence.
During discovery, the plaintiff served bills of particulars on FKC&S’s clients, which included claims of medical negligence and lack of informed consent, which required expert proof. These types of claims cannot proceed solely under res ipsa loquitur. Ultimately, FKC&S’s William (Bill) T. Collins, III made a motion to compel a proper Bill of Particulars, which resulted in the court’s order permitting the plaintiff to proceed solely on a theory of res ipsa loquitur — that FKC&S’s client performed a polypectomy without closing the surgical wound.
During a deposition, the plaintiff conceded that the bleeding from his rectum did not start until about four hours after the colonoscopy procedure. Thus, Collins obtained evidence directly from the plaintiff that proved FKC&S’s client closed the polypectomy wound.
FKC&S retained a colorectal specialist to review the file. Significantly, the expert opined that (1) the injury — a delayed post-polypectomy bleed — is the type that can occur even with proper care, and (2) a delayed bleed after a polypectomy is a common risk of the procedure and can happen even in the best of hands, without any negligence by the operating physician.
Collins used an affidavit from the expert to support the motion for summary judgment. He argued that the opinions of the expert established FKC&S’s clients’ entitlement to have the plaintiff’s claims dismissed, because they could not establish the essential first element of the doctrine of res ipsa loquitur. The plaintiff’s attorney filed only an attorney affirmation in opposition to the motion for summary judgment — failing to demonstrate that a delayed bleed can occur in the absence of negligence. As a result, the court found that the affirmation in opposition failed to raise any material issue of fact warranting a trial, and accordingly granted Collins’ motion, dismissing the plaintiff’s claims against FKC&S’s clients.
Despite significant delays, FKC&S’s client was spared the burden of spending a week or more in trial — a disruption that would have impacted his patients. Collins’ persistence in securing a proper bill of particulars during discovery proved crucial in obtaining summary judgment. These efforts were instrumental to the successful motion and exemplify the dedication FKC&S attorneys bring to providing vigorous, results-driven representation.