Res Ipsa Loquitur and its Expanding Use in Medical Malpractice Cases By Joyce Lipton Rogak, Esq. and David A. Stanigar, Esq. of Rogak & Gibbons, LLP
“Res Ipsa Loquitur.” Three Latin words which strike fear in the hearts of defense attorneys when the jury instruction is charged. The phrase, meaning “the thing speaks for itself,” gives the plaintiff the advantage of having the jury advised that they may infer that negligence was the cause of the plaintiff’s injury, when the doctrine is utilized at trial. Although it technically doesn’t change the burden of proof (which lies with the plaintiff), the doctrine has the effect of putting defense counsel in the position of explaining why the jury should not presume negligence occurred. We have found that over the past few years, res ispa loquitur has increasingly been used at trial to put the defense on the defensive. Judges are now more willing to give this charge to the jury than in the past, especially if the plaintiff’s attorney produces evidence that the injury more likely than not, occurred while the patient was undergoing surgery. In a case tried in April of 2013 by Florence B. Gibbons, a Partner in our firm, the jury was given the charge of “res ipsa,” over defense counsel’s objections. The case involved a woman who delivered a baby by natural vaginal birth. On the following day, she underwent a bilateral tubal ligation after receiving a spinal injection. She had no history of back or leg problems. The plaintiff testified that the spinal injection administered prior to the tubal ligation caused a sharp shooting pain from her back down to her leg. The morning after her tubal ligation, the plaintiff was able to walk while assisted to the bathroom. No complaints were recorded at that time. However, three hours later, she complained of back, leg and foot pain, and was unable to dorsiflex her left foot. A diagnosis of foot drop secondary to injury to her peroneal and tibial nerves was ultimately made. Plaintiff proceeded to trial using the theory of res ipsa loquitur. Interestingly, the plaintiff’s attorney did not choose to pursue a theory of negligence with respect to the spinal injection. Instead, he claimed that the injury occurred during the tubal ligation procedure, due to unknown causes. The defendant hospital settled with the plaintiff immediately prior to jury selection, leaving the anesthesiologist and the OB-GYN who performed the tubal ligation, in the case. Plaintiff’s counsel produced an expert neurologist who testified at trial that the cause of the plaintiff’s injury was a pressure from an outside source, although he could not state within a reasonable degree of medical certainty exactly what caused the pressure injury. Instead, he postulated that the nerve injury could have occurred from an improper application of Venodyne boots, due to someone in the operating room leaning on the patient’s leg during surgery, or due to the safety strap that was used to keep the patient’s legs together on the operating table. Due to inconsistencies and a lack of documentation in the hospital record, the defendants were unable to pinpoint when the patient first complained of symptoms indicative of a nerve palsy. Consequently, the defense was unable to theorize that the injury occurred either before or after the tubal ligation. Both defendants testified that their responsibilities did not include checking the boots, and obtained concessions from plaintiff’s expert that the pressure of Venodyne boots should not cause both a tibial and peroneal nerve injury, which would occur higher up in the leg than the boots were placed. The defendants also testified that they were not standing near the leg in which the nerve injury occurred and therefore could not have caused a compression injury. Despite the lack of evidence that the Venodyne boots were improperly placed or defective, as well as unrefuted evidence showing that neither the OB-GYN nor the anesthesiologist could have possibly leaned on the patient’s leg, the Court charged the jury on the doctrine of res ispa loquitur. The presiding Justice agreed with the plaintiff’s argument that since the patient was unconscious in the operating room, was under the exclusive control of the operating room staff and developed an injury remote from the surgical site, that the charge should be given Plaintiff’s attorney focused his summation on this charge, insisting that “something” must have been done negligently by the defendants to cause his client’s nerve injury. Plaintiff’s counsel, over the objections of the defense attorneys, also suggested (over objection) to the jury that the defendants were responsible for the actions of the entire OR staff present in the operating room. The defense attorneys argued it was impossible for the physicians to have caused the injury but were unable to offer alternative explanations for the patient’s foot drop. The case went to the jury on a Friday afternoon. The exhibits were requested by the jury and given to them. The jury did not render a verdict on that day and asked to continue their deliberations on Monday, much to the consternation of the defense attorneys. Fortunately, a unanimous defense verdict was rendered late Monday morning. The doctrine of res ipsa loquitur was initially used in situations where negligence was so obvious, that anyone with common sense would conclude that the plaintiff’s injury was due to an avoidable mistake. The seminal res ipsa loquitur case involved a barrel of flour that suddenly rolled out of a warehouse into a road, landing on a pedestrian and injuring him. Another classic example of such a case involved a collision between two trains travelling on the same train track. Back in the 1950’s, the New York Court of Appeals held that for a case to be submitted to the jury on the theory of res ipsa loquitur, the Plaintiff had the burden of making two separate showings. First and foremost, the plaintiff had to establish the nature of the instrumentality which was alleged to have caused the injury, and its connection with the defendant. Manley v. New York Telephone Company. If a Plaintiff was able to meet this threshold burden, submission of the case to the jury on the theory of res ipsa loquitur was warranted only when the Plaintiff additionally established the following three elements: (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Dermatossian v. New York City Transit Authority. However, as the law has evolved over the years, New York courts have adopted a more relaxed, “modern” approach to cases involving the theory of res ipsa loquitur, and in doing so, have effectively lowered the burden that plaintiffs must meet in order to submit a case to a jury on this theory. The more modern approach has now dispensed with the preliminary showing required under the holding in Manley, that a plaintiff must establish the nature of the instrumentality which is alleged to have caused the injury, and its connection with the defendant. This means that a plaintiff can now submit a case to a jury on the theory of res ipsa loquitur without specifically explaining how the negligence occurred, and even more troubling, without specifying who was responsible for the negligence/malpractice, so long as the defendant may have had exclusive control over any instrumentality which could have caused the injury. Medical malpractice lawsuits present special challenges in applying this doctrine; a lay jury usually does not possess the special knowledge and experience to conclude that malpractice was the likely cause of an injury. Consequently, use of this doctrine in medical malpractice actions was traditionally limited to a narrow category of factually simple cases where the negligence was obvious: cases involving a foreign object such as a sponge or a clamp inadvertently left in a surgical patient are the classic examples. The case of Kambat v. St. Francis Hospital, in which it was claimed a laparotomy pad was left in a patient, was one of the hallmark cases where it was held that expert testimony was not required. Another classic case involved burns suffered by a patient during surgery. In this case, the Court noted that a burn to a patient’s thigh that occurred during rectal surgery was a “very unusual thing.” Mack v. Lydia E. Hall Hospital. In these cases, res ipsa loquitur was charged since the jury could reasonably infer that the injury would not occur in the absence of negligence. In instances like these, the negligence was held to be so apparent that expert testimony was not required to explain to the jury whether or not negligence had occurred. The jury was able to use their everyday experience to determine whether negligence should be inferred. In fact, prior to the 2003 decision in States v. Lourdes Hospital, the Courts held that res ipsa was only applicable when expert testimony was not needed to assist a jury. The negligence alleged in the case had to be within the common knowledge of the lay person. However, the application of the doctrine changed radically after the Court of Appeals rendered their decision in States v. Lourdes Hospital, in which it was claimed that the patient developed thoracic outlet syndrome and CRPS as a result of improper positioning during surgery to remove an ovarian cyst. In an about-face, the Court held that res ipsa could be charged to the jury in such a situation, and expert testimony was permissible to “bridge the gap” between the jury’s common knowledge and the uncommon knowledge possessed by experts who testify in medical malpractice actions. Such testimony may be used in malpractice cases to “aid a jury in determining whether an event would normally occur in the absence of negligence.” Initially, New York Courts permitted medical experts to bridge this gap in a limited class of cases involving surgical patients who awoke from general anesthesia to immediately discover that they had suffered unexplained injuries remote from the operative site during surgery, as was the case of the plaintiff in the States case. Another case, DiGiacomo v. Cabrini Medical Center, involved a patient who awoke from general anesthesia with unexplained blood blisters on the bottom of his foot during a surgery to harvest muscle from his thigh. The case of Rosales-Rosario v. Brookdale University Hospital concerned a patient who underwent an epidural prior to giving birth, who awoke from a sedative induced sleep to discover an unexplained burn on her inner right knee. The courts upheld the plaintiffs’ requests to use an expert to explain why a res ipsa charge would be appropriate in these situations. Leaving a foreign object inside a patient continues to be a a typical case where res ipsa was charged, but now an expert is permitted to testify as to why such a situation could not happen in the absence of negligence. Other examples of foreign objects inadvertently left in a patient where the charge was given include, leaving a broken guidewire in a ureter during kidney stone removal, and leaving broken guide wire pins left in a toe during a bunionectomy. A nerve injury sustained during the course of surgery to an area remote from the surgical site is the second most common situation where a res ipsa charge request is usually granted. These cases include nerve or pressure injuries to a patient who underwent the removal of a kidney and sustained injuries to his cervical spine during surgery. Backus v Health. They also include a patient who suffered from quadripariesis following a colonoscopy, where it was claimed the injury was either due to improper positioning or an overdose of Propofol. Sanchez v. Weiss. However, an allegation of injury to a spinal accessory nerve during shoulder surgery did not rise to the level of res ipsa in part because there was evidence of a pre-existing nerve injury. Del Terzo v. The Hospital for Special Surgery. Contrast these cases with a terrible decision rendered by the Second Department in Antoniato v. Long Island Jewish Medical Center, which expanded the use of “res ipsa” to new and worrisome levels. The Antoniato case involved a patient who underwent cervical spine surgery at the C3-C4 level. A “spinal” injection was administered at the C4-C5 level. Post-operatively, the plaintiff developed an infection, which the doctors felt occurred at the C4-C5 space. The Second Department overturned the trial court’s ruling denying a res ipsa charge, holding that the C4-C5 level is an area “remote from the surgical site.” They further stated that the fact the defense experts provided alternative, non-negligent explanations as to how the infection could have occurred did not preclude the application of the res ipsa doctrine. The Court ruled that the plaintiff needs to show only enough “evidence supporting the three conditions to afford a rational basis for concluding that it is more likely than not that the injury was caused by the defendant’s negligence.” Another case of concern is Kabalan v. Hoghooghi. In Kabalan, a dental drill allegedly generated heat and caused a burn on the patient’s face during a wisdom tooth extraction. The Appellate Division held that the trial court properly charged the jury with res ipsa loquitur, because the plaintiff’s expert testified that in the absence of negligence by a dentist, a patient does not ordinarily sustain facial burns during the extraction of teeth. The fact that the defendant provided a non-negligent explanation for the injury did not preclude the res ipsa charge. If Judges continue to follow this expanded line of thinking, post-operative infections, which can spread through the blood stream and lodge in an area outside of the surgical site, could warrant a res ipsa charge. A DVT or PE occurring in the immediate post-operative period might be subject to the charge as well. Post-anesthesia respiratory or cardiac complications may also fall within the Court’s liberal application of res ipsa. The States case and its progeny have opened the door to such possibilities and other “creative” attempts by plaintiff’s attorneys to have the doctrine charged to the jury. The case law does mention specific acts or omissions which are not subject to the res ipsa charge. “If, on the other hand, an object is intended to be placed inside the patient for medical purposes, and a treating physician improperly places, or fails to adequately diagnose any resulting post-operative complications, such errors are akin to medical misdiagnosis and are not grounds for the res ipsa charge. Delaney v. Champlain Valley Physicians Hospital Medical Center. Therefore, a plaintiff who asked for the res ipsa charge in a case where a circumcision was allegedly improperly performed, was denied the charge. Collado v. Plawner. The court’s rationale for denying the charge was that there was no foreign body involved, and the injury occurred in the area of the surgery. Justice Bannon of the Supreme Court, Kings County, denied a res ipsa charge when a file broke off during a root canal, since it could not be readily determined that the breakage was the type of event that ordinarily does not occur in the absence of negligence. Donofrio v. Adler. The Court held that since the average lay person is not familiar with root canal procedures and their attendant risks, this was not a case where common knowledge could determine that an accident could not happen without negligence. Furthermore, the plaintiff’s claim was refuted by the defendant dentist, who said that a broken instrument is a common complication of a root canal procedure. It would appear that this case conflicts with the Antoniato and Kabalan decisions. Likewise, a fragment of wire that broke off during surgery on a patient’s thorax which was noted and deliberately left in the patient by the surgeon due to the risks involved in removal was not subject to a res ipsa charge in the case of James v. Wormuth. The Court distinguished the case from situations where a foreign object was unintentionally left inside a patient. Nursing home and hospital cases in which a patient is infirm and dependent upon others provide another possible avenue for plaintiffs to pursue a res ipsa claim. Thus far, plaintiffs have not been successful in their attempts to use the doctrine, unless the patient is unconscious. In Slobin v. Boasiako, a case litigated a year prior to the Antoniato case, the Court denied the plaintiff from making a claim of res ipsa loquitur. The case involved a claim that a patient in a nursing home was malnourished and not properly cared for. The plaintiff in this case alleged that he patient’s malnourished state resulted in a fall out of bed and death. Judge Davis of the Supreme Court, Nassau County ruled that due to issues of fact concerning why and how the patient became malnourished, the claim of res ipsa was denied, stating, “negligence is not the only inference that can be drawn from the circumstances of this case.” Courts will usually not award summary judgment to plaintiff on the grounds of res ipsa loquitur, even in situations involving an inadvertently left laparatomy pad, or traumatic injury to a nursing home resident. However, when the plaintiff’s proof is so convincing that negligence is inescapable and uncontested, summary judgment was granted on the grounds of res ipsa. Thomas v. New York University Medical Center. That case involved a patient who fell off an operating table while under anesthesia. In order to avoid or at least successfully rebut a res ipsa charge, risk managers should be aware of the need to document hospital records about a patient’s prior injuries, including nerve injuries and breaks in the skin integrity , as well as the need to stress the importance of noting a patient’s ability to move their limbs immediately following surgery. Anesthesiologists should describe what precautions were taken to protect a patient from a pressure injury. It is of the utmost importance that explanations be provided if possible, for any injury remote from the operative site. Patients with subsequent nerve injuries should be questioned about any pre-disposing factors. Needless to say, sponge and instrument counts should be conducted, with a list of what was used intraoperatively. If the surgery is particularly bloody, requiring many sponges, taking an x-ray of the surgical site should be considered. The defense that a patient swallowed a lap pad does not sit well with the Court. Last but not least, consistency in charting any post-operative complaints is vital. Especially in the age of Electronic Medical Records, staff must be aware that information must be updated and not simply repeated. Like pressure ulcers, a res ipsa charge is sometimes unavoidable. However, measures taken by physicians and hospital staff members to document a patient’s pre and post-operative condition go a long way to help mitigate against the charge.