MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge

Pending before the court is defendant Ted Lockwood, M.D.'s Motion to Dismiss Count II of Plaintiff's First Amended Complaint for failure to state a claim upon which relief can be granted (Doc. 22). As set forth below, defendant's Motion is denied.

I. BACKGROUND

This action arises out of a medical malpractice claim in which plaintiff Barbara A. Cohen has sued defendant, alleging that she was injured following the performance of bilateral implant mammopexy and bilateral axillary brachioplasty with liposuction of her arms and axilla by the defendant. Plaintiff asserts two counts. Plaintiff claims in Count I that she was injured as a result of negligence by defendant. In Count II, plaintiff claims injury based on the theory of res ipsa loquitur. Defendant has filed a motion to dismiss Count II pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant first argues that plaintiff fails to set forth facts sufficient to support the application of res ipsa loquitur. Second, defendant contends that plaintiff's negligence claim (Count I) fully explains the injury and that, therefore, plaintiff is precluded from relying on res ipsa loquitur.

II. LEGAL STANDARD

The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

III. ANALYSIS

A. Extrinsic Evidence

Defendant's motion to dismiss includes and references extrinsic evidence. Specifically, defendant relies on plaintiff's deposition testimony. If the court considers matters outside the pleadings, the court must treat the motion to dismiss as one for summary judgment as provided in Rule 56. Fed.R.Civ.P. 12(b). In this case, the court declines to consider plaintiff's deposition testimony. The court's function in ruling on a motion to dismiss is to assess whether plaintiff's complaint alone is legally sufficient to state a claim. Thus, the court is limited to the pleadings. Smith v. Sears Roebuck AD, 21 Fed. Appx. 796, 801 (10th Cir. 2001); Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). Accordingly, the court considers only plaintiff's complaint to determine whether she has stated a claim for relief.

B. Count II — Sufficiency of Allegations

In a medical malpractice action, a plaintiff is ordinarily required to present expert medical testimony to establish negligence on the part of a physician. Collins v. Meeker, 198 Kan. 390, 394, 424 P.2d 488, 493 (1967) (citations omitted). However, an exception to this general rule exists where "the results of treatment are so patently bad as to be manifest to lay persons." Id. (citations omitted). "It is only in those cases where common knowledge, observation and experience has shown that injury would not have resulted to a patient if reasonable medical or surgical care had been used, that negligence can be inferred from the injury, itself, and the doctrine of res ipsa loquitur can be applied." Id. at 400, 264 P.2d at 497.

Thus, the doctrine of res ipsa loquitur provides that negligence may be presumed in certain situations even without specific proof of negligence. Stadtherr v. Elite Logistics, Inc., 2002 WL 1067682, at *6 (D.Kan. 2002). A plaintiff must establish three elements for the doctrine of res ipsa loquitur to apply. First, the thing or instrumentality causing the injury or damage must be within the exclusive control of the defendant. Bias v. Montgomery Elevator Co. of Kan., Inc., 216 Kan. 341, 343, 532 P.2d 1053, 1055, 1056 (1975) (citing Vieyra v. Eng'g Inv. Co., Inc., 205 Kan. 775, 473 P.2d 44 (1970); Blue Stem Feed Yards, Inc. v. Craft, 191 Kan. 605, 383 P.2d 540 (1963)). Second, the incident must be of such kind or nature which ordinarily does not occur in the absence of someone's negligence. Id. Third, the occurrence must not have been due to the contributory negligence of the plaintiff. Id. "Although a number of Kansas cases have declined to apply res ipsa loquitur to specific claims of medical malpractice, Kansas recognizes the availability of the doctrine for the right facts." Savina v. Sterling Drug, Inc., 247 Kan. 105, 128, 795 P.2d 915, 932 (1990). The court has found at least two cases where Kansas courts have applied the doctrine of res ipsa loquitur to medical malpractice actions. See Emrie v. Tice, 174 Kan. 739, 258 P.2d 332 (1953); Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961).

Plaintiff has sufficiently alleged in her complaint the required elements of a res ipsa loquitur claim. Plaintiff satisfies the first element by contending that "[d]efendant was in the exclusive control of the performing of plaintiff's cosmetic surgeries." (First Amended Complaint ¶ 16). The court holds that, at this time, it is not necessary for plaintiff to identify the specific instrumentality that allegedly caused the injury. Rather, it is sufficient that plaintiff claims she was within the exclusive control of the defendant. Additionally, plaintiff satisfies the second element by alleging that "[d]efendant's performing of the above described cosmetic surgeries upon plaintiff caused injuries to plaintiff that would ordinarily not occur if defendant had used proper care. (Id. ¶ 17). Finally, although plaintiff has not specifically alleged that she was not contributorily negligent, the court finds that plaintiff has nevertheless satisfied this element since no fact alleged in the complaint suggests that plaintiff's injury was due to her own negligence. Moreover, plaintiff was likely incapacitated during surgery, thereby rendering her physically unable to contribute to any injury allegedly occurring during the course of the operation.

The court concludes that plaintiff's complaint is legally sufficient to state a claim under the doctrine of res ipsa loquitur. In other words, accepting all of plaintiff's well-pleaded facts as true, as this court must in ruling on a motion to dismiss, the court determines that plaintiff could recover under the doctrine of res ipsa loquitur. This possibility, however slim, precludes the court from dismissing Count II.

Defendant simply has failed to show this court that plaintiff could prove no set of facts that entitle her to relief. Additionally, "the Federal Rules of Civil Procedure erect a powerful presumption against rejecting pleadings for failure to state a claim." Morgan v. City of Rawlins 792 F.2d 975, 978 (10th Cir. 1986) (quoting Auster Oil Gas, Inc. v. Stream, 764 F.2d 381 (5th Cir. 1985)). Defendant has failed to overcome this presumption. Therefore, dismissal of Count II is not warranted.

C. Alternative Pleading

Defendant next argues that Count I of plaintiff's complaint, which alleges negligence on the part of defendant, fully explains the cause of plaintiff's injury and that, therefore, plaintiff is precluded from relying on res ipsa loquitur. Defendant's argument, however, is inconsistent with applicable law. The Federal Rules of Civil Procedure provide that "relief in the alternative or of several different types may be demanded." Fed.R.Civ.P. 8(a). Additionally, "a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses." Fed.R.Civ.P. 8(e)(2).

Under Kansas law, a plaintiff "may attempt to prove specific acts of negligence on the part of the defendants and still rely on res ipsa loquitur, subject to the qualification that if his evidence goes so far as to fully explain the cause or causes of his injury, he loses the right to rely on res ipsa loquitur." Voss, 188 Kan. at 651, 364 P.2d at 963. Additionally, Kansas law provides that "in cases in which a plaintiff is entitled to rely on the doctrine of res ipsa loquitur, he should not be penalized by the loss of the presumption because he has been willing to go forward and do the best he can to prove specific acts of negligence." Hugo v. Manning, 201 Kan. 391, 398, 441 P.2d 145, 151 (1968). As such, the court concludes that plaintiff's negligence claim does not bar her from also pleading res ipsa loquitur. Rather, the court considers the two claims as simply alternative theories of recovery, falling well within the scope of Rule 8's pleading requirements.

IT IS THEREFORE ORDERED that defendant's Motion to Dismiss Count II of Plaintiff's First Amended Complaint (Doc. 22) is denied.