On 26 September 1981 at 9:29 A.M., a mother gave birth to a baby girl, the infant plaintiff, at a Medical Center. She was attended by an obstetrician-gynecologist. The delivery was difficult because the baby had shoulder dystocia, i.e., although the head had emerged, the shoulders were stuck on the pelvic bone and the sacral promontory. After birth, the infant was found to have a birth injury or a birth injury accident: an Erb’s palsy or brachial plexus palsy to the right shoulder and arm caused by tearing of the nerve roots that controlled the right upper extremity. A New York Injury Lawyer said the plaintiffs contended that this condition was caused when the obstetrician-gynecologist applied excessive pressure during traction to the baby’s head when trying to dislodge the shoulders. The doctor’s explanation was that during the dystocia a retraction caused by the natural forces of labor put a stretch on her right shoulder.
Thereafter, a medical malpracticeaction to recover damages for personal injuries, etc., ensued. The Supreme Court of Westchester County, upon a jury verdict, rendered judgment in favor of the respondents and against the plaintiffs.
The plaintiffs appeal from the judgment.
The plaintiffs contend that the trial court erred in refusing to charge the jury on the theory of res ipsa loquitur; that the trial court committed reversible error in limiting them without prior notice to one expert witness; that a certain remark made by the defense counsel in his summation was highly prejudicial and mandates reversal.
The court finds the plaintiffs’ contentions to be lacking in merit.
Under the law, the doctrine of res ipsa loquitur permits a jury to infer negligence, based upon circumstantial evidence, from the mere occurrence of an event where the injury is of a character which would not ordinarily occur in the absence of negligence. A Long Island Personal Injury Lawyer said as a general rule, submission of the case on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the event must be of a kind that would not occur absent someone’s negligence; (2) the event must be caused by an agency or instrumentality within the defendant’s exclusive control; and (3) the plaintiff must not have voluntarily contributed to the event. Only when these essential elements have been established may the doctrine of res ipsa loquitur be charged to the jury.
In a medical malpractice case, the doctrine may be applicable where an inference exonerating the physician is improbable as a matter of fact. Thus, where an unexplained injury occurred in an area remote from the operative site while the patient was anesthetized, the doctrine of res ipsa loquitur has been applied. Additionally, where a foreign object is left in the body of a patient after an operative procedure is completed, a charge with respect to res ipsa loquitur would be warranted.
Here, the court finds that the facts adduced at trial were insufficient to establish the requisite elements so as to warrant a jury charge on the doctrine of res ipsa loquitur. Although, the plaintiffs’ expert testified that the infant plaintiff’s injury could not have occurred absent the respondents’ negligence, the respondents’ expert presented credible testimony that the injury was precipitated by the force of labor placing a strain on the infant’s shoulder. This is not a case where the appraisal of the circumstances attendant upon the injury-causing event is within the competence of the ordinary lay jury even as supplemented by the testimony of the expert witness.
The court does not find that the trial court erred in limiting the plaintiffs’ expert testimony. The plaintiffs’ claim that the trial court limited them to one expert witness is inaccurate. The plaintiffs presented the testimony of a neurologist as well as that of an obstetrician-gynecologist. A Brooklyn Personal Injury Lawyer said the trial court did not deny the plaintiffs the right to present a third expert witness. Rather, following an offer of proof and a finding that the prospective testimony would be largely repetitive, the trial court limited the area about which the expert witness could be questioned. Whether or not evidence should be limited as cumulative is within the sound discretion of the trial court. Upon the record, the court perceives no improvident exercise of discretion.
Moreover, on the plaintiff’s last contention, the defense counsel in summation compared the plaintiffs’ expert obstetrician-gynecologist to the television “gunman Palladin”, stating that the expert’s hallmark was “Have opinion, will travel”. Although the remark may have been prejudicial, this isolated comment was followed by the court’s prompt curative instructions. The court is satisfied that the improper remark did not influence the jury’s verdict and, therefore, the error, if any, was harmless.
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