Res Ipsa Loquitur May Defeat Summary Judgment for Post–Epidural Injection Spinal Infection, and Consent Forms Alone Do Not Establish Informed Consent (Phillips v Varma)
1. Introduction
In Phillips v Varma (Appellate Division, Second Department, Mar. 4, 2026), the plaintiff (Dean Phillips)
sued pain-management physician Vikas Varma and his practice, Neuro-Pain Care, P.C., for
medical malpractice and lack of informed consent after a series of lumbar epidural steroid injections.
Six days after the third injection, the plaintiff developed symptoms and was later diagnosed by MRI with an epidural abscess.
He underwent a laminectomy, and cultures showed methicillin susceptible staphylococcus aureus (MSSA).
The core issues on appeal were whether defendants were entitled to summary judgment dismissing (i) malpractice claims alleging
negligent introduction of infection during the injection(s) and negligent decision-making in administering the third injection,
and (ii) informed-consent claims alleging inadequate disclosure of reasonably foreseeable risks and alternatives.
2. Summary of the Opinion
The Second Department reversed the judgment for defendants. It held:
-
Although defendants made a prima facie showing of no departure from accepted practice in technique, they
did not make a prima facie showing that any departure was not a proximate cause of injury because
their experts’ causation denial was conclusory.
-
Because defendants failed on proximate cause, plaintiff needed only to raise a triable issue as to departure.
Plaintiff did so, including via res ipsa loquitur (supported by plaintiff’s expert opinion that an MSSA
epidural infection would not occur absent a breach of sterile technique), and via expert criticism of the decision to give a
third injection after no relief from prior injections.
-
Defendants also failed to establish prima facie entitlement to dismissal of lack of informed consent because their
papers did not show adequate disclosure of reasonably foreseeable risks; a signed consent form “standing alone” was
insufficient.
3. Analysis
3.1. Precedents Cited
Summary judgment framework in medical malpractice
-
Byrne v Sidhu (215 AD3d 622): Cited for the basic rule that a defendant moving for summary judgment must
establish prima facie either (a) no departure from accepted practice, or (b) any departure was not a proximate cause.
Influence here: The court measured defendants’ motion against this two-track prima facie burden and found defendants
satisfied one track (no departure) but not the other (no causation).
-
Chillious v Edouard (234 AD3d 737): Cited for the burden-shifting rule that once defendant meets the prima
facie burden, plaintiff must rebut only those elements met.
Influence here: This was pivotal—because defendants failed to establish lack of causation, plaintiff was not required
to raise a triable issue on causation to defeat summary judgment.
-
Stukas v Streiter (83 AD3d 18): Cited (with Chillious v Edouard) for the proposition that
plaintiff’s opposition need only address elements the defendant established prima facie.
Influence here: The court used it to confine plaintiff’s required showing to “departure” alone once causation was not
established by defendants.
Res ipsa loquitur in medical malpractice
-
Lancia v Good Samaritan Hosp. (201 AD3d 913) and McCarthy v Northern Westchester Hosp.
(139 AD3d 825): Cited for the three elements of res ipsa loquitur:
(1) the event ordinarily does not occur absent negligence; (2) exclusive control by defendants; and (3) no voluntary action by
plaintiff causing the injury.
Influence here: The court applied these elements to the post-injection epidural abscess scenario and held plaintiff
raised a triable issue on element (1) via expert proof; elements (2) and (3) were effectively undisputed.
-
Gonzalez v Arya (140 AD3d 925), Bernard v Bernstein (126 AD3d 833), and
Antoniato v Long Is. Jewish Med. Ctr. (58 AD3d 652): Cited as examples supporting the use of res ipsa where
expert proof supports that the injury would not ordinarily occur absent negligence.
Influence here: They reinforced that plaintiff can rely on expert opinion to satisfy the “ordinarily does not occur”
prong, even when defendants argue the injury is a “known complication.”
Lack of informed consent
-
Ciceron v Gulmatico (220 AD3d 732) (quoting Cox v Herzog (192 AD3d 757)): Cited for the
three elements of an informed-consent claim: failure to disclose reasonably foreseeable risks/alternatives a reasonable
practitioner would disclose; a reasonably prudent patient would have declined if fully informed; and proximate causation.
Influence here: Provided the doctrinal checklist the court used to evaluate defendants’ prima facie showing.
-
Guinn v New York Methodist Hosp. (212 AD3d 787): Cited for the rule that a signed consent form, standing
alone, does not establish prima facie entitlement to summary judgment on informed consent.
Influence here: Defendants’ submissions did not adequately establish disclosure; the presence of a consent form did
not cure that deficiency.
-
Walker v Saint Vincent Catholic Med. Ctrs. (114 AD3d 669): Cited (alongside Guinn) to
support denial where defendants fail to show adequate risk disclosure as a matter of law.
-
Winegrad v New York Univ. Med. Ctr. (64 NY2d 851): Cited for the rule that if a movant fails to meet its
prima facie burden, the motion must be denied regardless of the sufficiency of opposing papers.
Influence here: The informed-consent claim survived because defendants’ motion papers were insufficient on their face.
Appellate procedure (notice of appeal)
-
CPLR 5512(a): The notice of appeal from the order was deemed a notice of appeal from the judgment.
Influence here: Procedurally ensured review of the final judgment.
3.2. Legal Reasoning
-
Defendants’ prima facie showing was incomplete.
Defendants’ experts explained accepted sterile practices and opined infection can occur even absent negligence—supporting “no
departure.” But on causation, their denial that defendants caused the abscess was deemed conclusory, so
defendants did not eliminate causation as a matter of law.
-
That incompleteness narrowed plaintiff’s opposition burden.
Because defendants did not meet the prima facie burden on causation, plaintiff did not have to raise a causation issue to
defeat summary judgment; raising a triable issue on “departure” was enough.
-
Res ipsa loquitur supplied a triable issue on departure in an infection case.
The court accepted that plaintiff’s expert opinion—i.e., an MSSA epidural infection would not occur absent a breach of proper
sterile technique—could satisfy the “ordinarily does not occur absent negligence” element, even where defendants framed
infection as a known complication. Exclusive control and lack of plaintiff contribution were not disputed.
-
Independent departure theory: the decision to administer the third injection.
Plaintiff’s expert also raised a factual dispute that administering a third injection (with a lower dosage) after two failed
injections was not in accordance with accepted practice.
-
Informed consent: defendants did not establish disclosure.
The court held defendants did not show, prima facie, that plaintiff was informed of reasonably foreseeable risks. A consent
form alone did not carry the burden; absent adequate proof of disclosure, summary judgment was improper.
3.3. Impact
-
Expanded practical viability of res ipsa in procedure-related infection claims.
Defendants often argue infection is a recognized complication. This decision illustrates that, at the summary judgment stage,
a plaintiff may still reach the jury on res ipsa when an expert can articulate why the particular infection (here, MSSA epidural
abscess at the injection site with temporally consistent onset) ordinarily would not occur absent negligent breach of sterility.
-
Sharper scrutiny of defense expert affidavits on causation.
The ruling reinforces that defense experts must provide a nonconclusory causation analysis; otherwise, defendants risk failing
the prima facie burden and narrowing what plaintiffs must rebut.
-
Informed-consent motions require affirmative disclosure proof.
Healthcare defendants should expect to submit detailed evidence of the risks and alternatives actually disclosed (not merely a
signed form) to obtain dismissal as a matter of law.
4. Complex Concepts Simplified
- Summary judgment / prima facie burden
-
A pretrial win without a trial. The moving party must first show, with admissible evidence, there is no triable factual dispute
on the required elements. If the movant fails, the motion is denied even if the opponent’s response is weak.
- Departure from accepted practice
-
In malpractice, a “departure” means the provider did something (or failed to do something) that competent providers generally
would not have done under similar circumstances.
- Proximate cause
-
The causal link: the departure must be a legally sufficient cause of the injury.
- Res ipsa loquitur
-
“The thing speaks for itself.” A rule that permits (but does not compel) an inference of negligence when the type of event
ordinarily would not happen without negligence, the instrumentality was in defendants’ exclusive control, and the plaintiff did
not cause it.
- Lack of informed consent
-
A claim that the patient was not told material, reasonably foreseeable risks and alternatives that a reasonable practitioner
would disclose, and that a reasonable patient would have declined the procedure if properly informed, with injury resulting.
- Epidural abscess / MSSA / laminectomy
-
An epidural abscess is a pocket of infection near the spinal canal; MSSA is a common bacterium susceptible to certain
antibiotics; a laminectomy is surgery to remove part of a vertebral bone to access and evacuate the abscess.
5. Conclusion
Phillips v Varma underscores two litigation-significant points in New York malpractice practice:
(1) when defendants fail to eliminate proximate cause with nonconclusory expert proof, plaintiffs may defeat summary judgment by
raising a triable issue on departure alone; and (2) res ipsa loquitur can create that triable issue even in infection cases
described as “known complications,” where expert proof supports that the infection ordinarily would not occur absent negligence.
Separately, the decision reiterates that informed-consent dismissal requires affirmative proof of adequate disclosure, and a signed
consent form alone will not suffice.