Personal Injury Lawyer Blog
(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.)
Plaintiff’s Injury Is Not the Type That Occurs Absent Negligence on the Part of the Defendants. Thus, the Burden of Persuasion Shifts to Dr. Lee to Come Forward with Evidence to Disprove His Negligence.
During the course of the cholecystectomy and the subsequent treatment by the Defendants in this matter, Plaintiff sustained the following injuries: laceration of the left iliac vein, laceration of the mesentery and small bowel perforation, posterior laceration of the bifurcation of the abdominal aorta and, an anterior wall laceration. (See Dr. Green’s June 16, 2006, Operative Report; see also, Dr. Smith’s Operative Report, June 28, 2008.) The injuries discovered on the 28th to the abdominal aorta and iliac vein are iatrogenic injuries (instrument caused), which do not occur absent someone’s negligence.
Although all the defendants in this case deny their own culpability, each admits that these injuries were iatrogenic. Thus, plaintiff is entitled to a res ipsa loquitur presumption and the burden shifts to the defendants to produce evidence which establish they did not cause one, or all, of plaintiff’s injuries.
The foundational or basic facts of the res ipsa loquitur presumption are well established. They are that the injury (1) is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) is not due to any voluntary action or contribution on the part of the plaintiff… (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829; Ybarra v. Spangerd (1944) 25 Cal.2d 486, 490.) When these prerequisites are met, the trier of fact is allowed to assume existence of presumed fact unless defendant introduces evidence to contrary. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)
Accordingly, the doctrine of res ipsa loquitor shifts the burden of producing evidence so that plaintiffs may bring tort claims even though they lack specific proof that their injury was caused by negligence of a defendant. (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1671.) Res ipsa loquitur requires the defendant to come forward with evidence to disprove his or her negligence. (Fields v. Yusuf (2006) 144 Cal.App.4th 1381, 1389; Evid. Code § 646(b).) (See Part 11 of 11.)
For more information you are welcome to contact personal injury lawyer, Moseley Collins.