Medical Malpractice By San Francisco Physicians Disables Patient, Part 11 of 11

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Use of the res ipsa loquitur doctrine is especially suited to a medical or dental malpractice setting in which an unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 945.) In this case, Plaintiff was unconscious at the time he sustained these injuries and cannot say with a reasonable degree of probability which defendant was negligent. However, it is undisputed he was injured. As affirmed by Dr. Chin, the type of injuries sustained by Plaintiff do not occur where due care is used and the proper practice is followed.

With respect to the issue of control, the Supreme Court in Ybarra v. Spangard (1944) 25 Cal.2d 486, held, because “[t]he control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant … this, we think, places upon them the burden of initial explanation … It should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make. ” (Id. at pp. 492-493.) As discussed above, plaintiff’s injuries were caused by surgical instruments within the exclusive control of the defendants.

Plaintiff is therefore entitled to the res ipsa loquitur presumption and the burden is shifted to Dr. Lee to produce evidence which proves he was not negligent in his treatment and care of Plaintiff. Plaintiff has met his burden to show the legitimacy of the issues raised in his pleadings. Public policy favors a trial on the merits and a determination by the jury on the contested issues of material fact.


Based upon the foregoing, questions of law cannot be decided at this juncture because questions of material fact abound. Given the declaration of Dr. Chin, all named defendants remain implicated as alleged in Plaintiff’s medical malpractice and lack of infonned consent causes of action. Dr. Lee is unable to meet his burden to show that the ultimate facts are undisputed. Even assuming that Dr. Lee met his initial burden, plaintiff has rebutted Dr. Lee’s expert’s declaration with his own expert’s declaration.

The declaration of Dr. Chin clearly presents triable issues of fact, namely, did Dr. Lee breach his duty of care by failing to adequately inspect, discover and repair plaintiffs injuries. Because questions of fact remain, these facts are for the jury to decide as the trier-of-fact at the time of trial, and neither a summary judgment or summary adjudication are proper remedies to be ordered by this Court. Moreover, under the res ipsa loquitur doctrine, the burden is now shifted to Dr. Lee to prove his treatment and care was not negligent.

Plaintiff respectfully requests that this court deny defendant Dr. Lee’s summary judgment motion, and alternatively, that it deny defendant’s motion for summary adjudication.

For more information you are welcome to contact personal injury lawyer, Moseley Collins.

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