ALBANY – Citing the longstanding practice of applying the doctrine of res ipsa loquitur sparingly in medical malpractice cases, an appellate panel in Albany has ordered a new trial in a dental matter where the jury was charged that the injury speaks for itself and that its occurrence alone is suggestive of negligence.
In Gushlaw v. Roll, 88587, the Appellate Division, Third Department, observed that in many medical malpractice cases the plaintiff cannot establish the fact essential to the foundation for a charge of res ipsa loquitur: that the injury-causing event does not normally occur absent negligence. And this litigation, the court said, falls within that majority.
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