A surgeon operated on my knee about one year ago. However after the operation, I lost feeling in the lower part of my leg. The damage is permanent. Is there any claim I can make for my injuries?
As with all medical malpractice cases, you would need all of your medical records. Ultimately, it would be up to a doctor to review your chart (and possible examine your leg) to determine if you have a claim. But you may have a claim which might fit under a category of claims covered by a legal doctrine called res ipsa loquitur.
In a prior post, I explained the doctrine of res ipsa loquitur. The three basic elements of res ipsa loquitur are (1) the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the injured party. Ordinarily the court applies res ipsa for cases that require no special knowledge like a collapsing chair.
But if you look at your case, since you were probably anesthetized during the procedure, you had nothing to do with your injuries. The entire operation was under the exclusive control of your doctor. The only question is the first element. Was your loss of feeling in your leg not ordinarily caused by a knee operation?
Only a doctor can answer that question.
Bridge the Gap
In 2003, the Court of Appeals expanded res ipsa loquitur to include malpractice cases. An expert could “bridge the gap” of knowledge between a lay jury and a doctor. An expert witness can testify on behalf of the injured party that ordinarily an operation on the knee does not cause loss of feeling in the leg. States v Lourdes Hosp., 100 NY2d 208, 762 NYS2d 1 (2003). (Anesthesiologist negligently hyperabducted patient’s arm for an extended period of time during a surgery.)
There have been other cases that have embraced this reasoning. Bernard v Bernstein, 126 AD3d 833, 3 NYS3d 426 (2d Dept 2015). (Patient entitled to res ipsa jury instruction when expert testified that a patient does not ordinarily sustain a MRSA infection in her foot after the defendant podiatrist administers a cortisone injection.) Smith v Sommer, 189 AD3d 906, 137 NYS3d 99 (2d Dept 2020). (Injured patient has expert testify that a surgical procedure to treat GERD in the stomach does not ordinarily cause injury to the vagus nerves. Res ipsa would apply to this case.)
But before any of this lawyering is possible, an expert must carefully review the medical records.
By James Santner, Esq.
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