Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
LEGAL PRINCIPLES
Since the doctrine of res ipsa loquitur is only a rule of circumstantial evidence and, if overcome, plaintiff still has the burden of proof on the ultimate issue of negligence, general instructions given on the issues and on the burden of proof when viewed together with instructions given on res ipsa loquitur as a matter of law do not prejudicially mislead a jury by preventing it from knowing which party had the burden of proof. McFarland v. Booker (1967) 250 Cal. App. 2d 402, 58 cal. Rptr. 417.
Since a res ipsa loquitur instruction permits the jury to infer negligence from the happening of an injury alone, there must be a basis either in common experience or expert testimony that when such an injury occurs, it is more probably than not the result of negligence. McKinney v. Nash, supra, at 436. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In Blackwell v. Hurst (1996) 46 Cal. App. 4th 939, 54 Cal. Rptr. 2d 209 states that use of the res ipsa loquitur doctrine is especially suited to a medical malpractice setting in which the unwitting and often unconscious or semiconscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.
Such is the case here.
In a medical malpractice action in which plaintiff had lost a kidney following the inadvertent suturing of the ureter in two places during a hysterectomy operation, it was prejudicial error to refuse her requested conditional res ipsa loquitur instruction, where it was undisputed that the surgeon was responsible for the accident and that plaintiff did not contribute thereto, and where it was the expert opinion of a specialist in obstetrics and gynecology that, although there are unavoidable risks to the ureters in any hysterectomy, the suturing and closing the wound without exercising any technique to determine the condition of the ureters was not the exercise of proper care in such an operation, thus leaving the probability of negligence a question for the jury. Tomei v. Henning, supra, at 326.
In Tomei, the fact that the jury found the surgeon not guilty of negligence established, not that they had rejected the evidence that could have supported a finding of negligence under the doctrine of res ipsa loquitur, but only that they could not identify any specific negligent conduct, and such an instruction would not have been superfluous, where, had it been given, the jury might reasonably have concluded that regardless of how the accident happened, or how it could have been avoided, its happening alone supported the inference of negligence.
Such is the case here. (See Part 12 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.