Res Ipsa Loquitur Held Appropriate to Prove Negligence During Kidney Transplant

A jury was properly instructed on the doctrine of res ipsa loquitur in an action against surgeons by an injured kidney donor. As a result of the operation to harvest his right kidney, the plaintiff sustained injuries to his cervical spine and muscles on the left side of his body.


The operation, which all of the experts agreed normally should be only two to three hours in duration, took over six hours to complete. During most of that time, the plaintiff was positioned on his left side with both his head and lower body angled downward. Both defendant-physicians were responsible for the plaintiff's positioning.

The defendant's appealed a jury award of $4,145,000.


The appeals court held that where an unexplained injury occurs in an area remote from the operation while the patient is anesthetized, the doctrine of res ipsa loquitur is available to establish a prima facie case. A plaintiff is not required to eliminate any possible alternate theories, but rather must show only that, more likely than not, the event was of a kind that ordinarily does not occur in the absence of someone's negligence, it was caused by an agency or instrumentality within the exclusive control of the defendant, and it was not due to any voluntary action or contribution on the part of the plaintiff. The court affirmed, but modified, the damages award. Backus v. Kaleida Health, 91 A.D.3d 1284, 937 N.Y.S.2d 773 (N.Y.A.D. 4 Dept. Jan 31, 2012).