The doctrine of res ipsa loquitur1 permits a jury to infer negligence under certain circumstances in the absence of direct proof. It is particularly helpful in medical negligence cases since patients are almost never in a position to understand what went wrong or who was responsible. What sets medical negligence cases apart, however, is that the elements of res ipsa must often be established by expert testimony. The following article will examine the use of res ipsa in New Hampshire and its application in medical negligence cases.
II. Res Ipsa Loquitur in New Hampshire:
“[R]es ipsa loquitur has long been the law of this State…”2 Our Supreme Court has explained that
For that doctrine to apply it is necessary that (1) the accident 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) other responsible causes are sufficiently eliminated by the evidence.3
The Court has cautioned that “the rule of res ipsa does not require a plaintiff’s verdict; it is merely a rule identifying the elements of circumstantial evidence that are sufficient to get a plaintiff’s case to the jury and allow the jury to return a plaintiff’s verdict.”4
It is well-settled that expert testimony may be used to satisfy the elements of res ipsa. In Cowan v. Tyrolean Ski Area, Inc.5, the plaintiff was injured when the defendant’s chairlift unexpectedly rolled backwards. The trial judge refused to give a res ipsa instruction and the jury returned a defendant’s verdict. On appeal, the Supreme Court agreed that the plaintiff had not met his burden of proving the factual predicates necessary to invoke res ipsa.
The Court began by examining the requirement that the accident must have been the kind which ordinarily does not take place in the absence of negligence:
In the usual case, the basis of past experience, from which the conclusion may be drawn that such events usually do not occur without negligence, is one common to the whole community, upon which the jury are simply permitted to rely. Even where such a basis of common knowledge is lacking, however, expert testimony may provide a sufficient foundation.6
The Court found that the plaintiff properly introduced expert testimony in an effort to satisfy the first element of res ipsa. However, it concluded that, in this case, the expert’s testimony was not sufficient to meet the plaintiff’s burden. In particular, although the expert described various negligent acts that could have caused the accident, he also conceded that it could have happened “for some other reason.” Since “some other reason” could include non-negligent acts, the Court held that the plaintiff had failed to demonstrate that the accident could not have occurred in the absence of negligence.7
Similarly, the Court concluded that the plaintiff had failed to satisfy the third element of res ipsa since his expert did not eliminate all other responsible causes. Specifically, the Court explained that
the mechanics of ski lifts are outside common experience, and jurors would need the benefit of expert testimony before they could reasonably eliminate all probable causal negligence but that of the defendant-operator. On this issue, the expert described several causal malfunctions that apparently could have resulted either from defective design or from defective maintenance. Since this testimony did not tend to eliminate the negligence of the designer or manufacturer from the range of reasonably possible causes of the malfunction, it was insufficient to carry the plaintiff’s burden.8
Despite this holding, the Court was careful to point out that “[t]he plaintiff is not required to exclude all other possible conclusions beyond a reasonable doubt… [I]t is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant.”9
In light of the foregoing, the law of res ipsa loquitur in New Hampshire can be summarized as follows:
The jury will be permitted to infer negligence if the plaintiff can establish, through common knowledge or expert testimony, that: 1) his injuries ordinarily would not have occurred in the absence of someone’s negligence; 2) his injuries were caused by an agency or instrumentality within the exclusive control of the defendant; and 3) other responsible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant.
III. Res Ipsa Loquitur In Medical Negligence Cases:
The New Hampshire Supreme Court has not had an occasion to apply the doctrine of res ipsa loquitur in a medical negligence case.10 In other states, however, the use of res ipsa is commonplace in medical injury cases.11 Initially, the doctrine was only applied where the necessary elements could be determined through common knowledge. More recently, courts have recognized that expert testimony can be used to establish the requisite propositions.12 On this issue, the New Jersey Supreme Court explained that
the requisite probability of negligence may exist quite independently of the awareness or “common knowledge” of the lay community. Expert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the “common knowledge” of lay persons. We hold, therefore, that expert testimony to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence may afford a sufficient basis for the application of the doctrine of res ipsa loquitur.13
The Tennessee Supreme Court has agreed, adding the following comments:
Claimants often have no knowledge of what happened during the course of medical treatment, aside from the fact that an injury occurred during that time. In cases where the standard of care or the nature of the injury requires the exposition of expert testimony, such testimony may be as probative of the existence of negligence as the common knowledge of lay persons. The use of expert testimony in that regard serves to bridge the gap between the jury’s common knowledge and the complex subject matter that is “common” only to experts in a designated field. With the assistance of expert testimony, jurors can be made to understand the higher level of common knowledge and, after assessing the credibility of both the plaintiff’s and defendant’s experts, can decide whether to infer negligence from the evidence.14
In the most recent case on this issue, New York’s highest court examined the law and concluded that expert testimony could be used to establish the requisite elements of res ipsa in medical injury cases. Relying on cases from the Second Circuit15 and the New Jersey Supreme Court16, the court described its reasoning as follows:
In an increasingly sophisticated and specialized society such as ours, it is not at all surprising that matters entirely foreign to the general population are commonplace within a particular profession or specially trained segment of society. The fact that the knowledge is specialized, however, does not alter its pervasive nature among those with the proper training and experience…17
Under New Hampshire law, expert testimony is necessary in a medical negligence case.18 By statute, the plaintiff must establish the applicable standard of care, a breach of the standard of care, and causation.19 Our Supreme Court has recognized that the elements set forth in the statute are identical to the elements necessary to prove a common law professional negligence claim.20 It follows that the codification of the medical injury cause of action does not prevent the application of res ipsa loquitur in a malpractice case.
As is noted above, our Supreme Court has recognized that expert testimony can be used to satisfy the requirements of res ipsa.21 In a medical negligence case, therefore, the plaintiff is entitled to a res ipsa instruction if he is able to produce expert testimony showing that:
He was injured in a manner that would not normally occur but for a breach of the applicable standard of care;
He was injured by an agency or instrumentality within the exclusive control of the defendant; and
Other possible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant.
If the plaintiff satisfies his burden by producing such expert testimony, he is entitled to a res ipsa instruction even if the defendant produces expert testimony of his own rebutting the plaintiff’s claims. “It is a well-established principle that a court may not refuse as a matter of law to instruct on the doctrine of res ipsa loquitur merely upon the basis that the defendant’s evidence sufficiently rebuts the making of such an inference.”22
The classic res ipsa medical negligence case arises when a sponge is left inside a patient after a surgical procedure. However, it may be equally effective in more complex circumstances. For instance, we currently have three different cases in which young, healthy patients suffered severe injuries while under anesthesia for relatively minor procedures. Two of the patients died and the third has irreversible brain damage. In these cases, a res ipsa instruction could be supported by expert testimony that the plaintiff’s injuries probably would not have occurred but for a breach of the standard of care and there are no other reasonable explanations. In fact, the Pennsylvania Supreme Court has recognized the value of res ipsa in cases like these:
The need for an inference of negligence is especially obvious in the situation where a patient submits himself or herself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used or procedures employed in his or her treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.23
The use of res ipsa in a medical negligence case does not bar the introduction of evidence intended to prove direct negligence. As the Wisconsin Supreme Court has recognized, “a plaintiff may plead res ipsa loquitur and specific negligent acts in the alternative.”24 This means that “the plaintiff’s offering of evidence to prove specific acts of negligence does not preclude the application of the doctrine of res ipsa loquitur if there is proof presented in support of the application of the doctrine.”25
Res ipsa loquitur can be a powerful tool for patients who have been injured by medical negligence. The doctrine allows a plaintiff to get his case to the jury even in the absence of direct evidence of a breach of the standard of care. It then allows the jury to find negligence if it is convinced that there is no other reasonable explanation.
“The thing speaks for itself.”
LaRoche v. Doe, 134 N.H. 562, 568 (1991).
Rowe v. Public Service Company of New Hampshire, 115 N.H. 397, 399 (1975).
Cowan v. Tyrolean Ski Area, Inc., 127 N.H. 397, 400 (1985).
Id., 127 N.H. at 400 (quoting W. Prosser & W. Keeton, The Law of Torts 247 (5th ed.1984)).
Id., 127 N.H. at 400-01.
Id., 127 N.H. at 401.
Id., 127 N.H. at 401 (quoting Restatement (Second) of Torts §328D comment f).
In Anglin v. Kleeman, 140 N.H. 257 (1995), a case in which a sponge was left in the patient’s body after surgery, the plaintiff appealed the trial court’s refusal to give a res ipsa instruction, but the Supreme Court refused to consider this argument because the plaintiff did not request a res ipsa instruction below.
See Ybarra v. Spangard, 154 P.2d 687, 689 (Cal. 1945).
See Kmart Corporation v. Bassett, 769 So.2d 282, 287 (Ala. 2000); Ward v. Mount Calvary Lutheran Church, 873 P.2d 688, 692 (Ariz.App. 1994); Kerr v. Bock, 486 P.2d 684, 686 (Cal. 1971); Harris v. Cafritz Memorial Hospital, 364 A.2d 135, 137 (D.C.1976); Marrero v. Goldsmith, 486 So.2d 530, 532 (Fla. 1986); Walker v. Rumer, 381 N.E.2d 689, 691 (Ill. 1978); Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind.App. 1993); Cangelosi v. Our Lady of Lake Regional Medical Center, 564 So.2d 654, 664-65 (La.1989); Edwards v. Boland, 670 N.E.2d 404, 406-07 (Mass.App. 1996), rev. denied, 674 N.E.2d 245 (Mass. 1996); Jones v. Porretta, 405 N.W.2d 863, 873 (Mich. 1987); Buckelew v. Grossbard, 435 A.2d 1150, 1157-58 (N.J. 1981); Mireles v. Broderick, 872 P.2d 863, 866 (N.M. 1994); States v. Lourdes Hospital, _N.E.2d_ (N.Y. May 6, 2003); Morgan v. Children’s Hospital, 480 N.E.2d 464, 467 (Ohio 1985); Harder v. F.C. Clinton, Inc., 948 P.2d 298, 305 (Ok. 1997); St. Paul Fire and Marine Insurance Company v. Watkins, 495 P.2d 265, 267 (Or. 1972); Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1138 (Penn. 1981); Wilkinson v. Vesey, 295 A.2d 676, 691 (1972); Van Zee v. Sioux Valley Hospital, 315 N.W.2d 489, 492 (S.D.1982); Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86, 95 (Tenn. 1999); Connors v. University Associates in Obstetrics & Gynecology, Inc., 4 F.3d 123 (2nd Cir. 1993) (applying Vermont law); Pederson v. Dumouchel, 431 P.2d 973, 979 (Wash. 1967); Hoven v. Kelble, 256 N.W.2d 379, 383 (Wis. 1977).
Buckelew v. Grossbard, 435 A.2d 1150, 1158 (N.J. 1981).
Seavers v. Methodist Medical Center of Oak Ridge, 9 S.W.3d 86, 95 (Tenn. 1999).
Connors v. University Associates in Obstetrics & Gynecology, Inc., 4 F.3d 123 (2nd Cir. 1993).
Buckelew, supra note 13.
States v. Lourdes Hospital, _N.E.2d_,_ (N.Y. May 6, 2003).
See Francoeur v. Piper, 146 N.H. 525, 527 (2001).
See id. (quoting R.S.A. 507-E:2, I).
See Cowan, supra note 4, 127 N.H. at 400.
Morgan v. Children’s Hospital, 480 N.E.2d 464, 467 (Ohio 1985). See also Jones v. Porretta, 405 N.W.2d 863, 874 (Mich. 1987); Buckelew, supra note 13, 435 A.2d at 1158; Seavers, supra note 14, 9 S.W.3d at 96.
See Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1139 (Penn. 1981) (quoting Ybarra, supra note 11).
Hoven v. Kelble, 256 N.W.2d 379, 382 (Wis. 1977).
Morgan, supra note 22, 480 N.E.2d at 467.