In Simmons v. Neuman , Louise Simmons filed suit to recover damages for medical malpractice, alleging that she suffered burns to her right thigh during surgery on her right shoulder.
Invoking the doctrine of res ipsa loquitor , Simmons asked the court to rule in her favor on the issue of liability. She claimed that she was burned by an item interchangeably identified as a "Bovie apparatus," a "Bovie device," and "Bovie Pads."
When the Kings County Supreme Court denied her request, Simmons appealed to the Appellate Division, Second Department, which was equally unsympathetic.
The AD2 noted that since the doctrine of res ipsa loquitor relies largely on circumstantial evidence, a plaintiff isn't ordinarily entitled to summary judgment or a directed verdict. Rather, a party receives that kind of relief "'when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable.'"
Here, the governing standard wasn't met, since there were missing factual allegations concerning the surgery itself, and no description or explanation of the so called "Bovie apparatus."
We're reluctant to dissect this any further.
To download a copy of the Appellate Division's decision, please use this link: Simmons v. Neuman