Medical Malpractice--res ipsa loquitur--not applicable
Plaintiff was not entitled to an instruction on res ipsa
loquitur in a medical malpractice action arising from a
gallbladder removal where the proper standard of care, the
surgical procedure, and the attendant risks were not within the
common knowledge or experience of a jury and there was
conflicting expert testimony. Plaintiff must be able to show,
without expert testimony, that the injury was of a type not
typically occurring in the absence of some negligence by
defendant.
Snipes Law Office, by David W. Snipes, for plaintiff-
appellant.
Patterson, Dilthey, Clay & Bryson, L.L.P., by Mark E.
Anderson, for defendant-appellee.
HUNTER, Judge.
Kenneth J. Diehl (“plaintiff”) appeals to this Court the trial
court's judgment dismissing his complaint with prejudice after a
jury concluded that Dennis S. Koffer, M.D. (“defendant”) was not
negligent in his rendering of medical care to plaintiff. (We note
defendant Johnston Surgical Associates, P.A. was dismissed from the
action upon summary judgment and is not party to this appeal.)
Plaintiff brings forward only one assignment of error, that being,
that the trial court erred by refusing to instruct the jury on the
issue of res ipsa loquitur. We find no error. The record before us reveals that on 20 December 1993, Dr.
Koffer operated on plaintiff to remove his gallbladder. The
procedure, known as a laparascopic cholecystectomy,
involves the insertion of sharp instruments,
known as trocars, into the belly of the
patient, so that the gallbladder can be
visualized with small cameras and removed
without a large incision. [A few minutes into
the operation,] [d]uring the insertion of the
initial trocar, damage was done to the
Plaintiff's mesentery, duodenum and
aorta. . . .
The facts show:
Plaintiff's blood pressure dropped to 57 over
32. . . . [A]n anesthesiologist[] was called
to the operating room. . . . [A] general
surgeon, . . . a pathologist, and two
additional nurse anesthetists were also called
to the operating room. Later, . . . a
vascular surgeon . . . was also called to the
operating room.
. . .
Defendant [Koffer] . . . made the decision
that the laparoscopic surgical procedure had
to be aborted and that Plaintiff had to be
opened up.
. . .
After the surgery, Plaintiff was moved to
the intensive care unit . . . where he
remained for approximately nine days.
Plaintiff's claim in this case rests on the sole question of
whether Dr. Koffer, in violation of the standard and accepted
medical practices of the area, negligently inserted the trocar into
plaintiff's abdomen, thus entitling plaintiff to the requested resipsa loquitur jury instruction. Plaintiff argues that the
evidence at trial established that during a
laparoscopic gallbladder surgery, the standardand accepted practice at the time of
Plaintiff's surgery was to introduce the
trocar into the patient's abdomen in a
downward angle toward the patient's feet, and
that this practice was employed in order to
avoid injuries to the patient such as those
incurred by Plaintiff. . . . [Furthermore,]
the evidence at trial supported a jury
instruction on the doctrine of res ipsa
loquitur and that, had the jury been so
instructed, there was sufficient evidence from
which the jury could find, in the absence of
direct proof, that Plaintiff would not have
been injured unless Defendant negligently
inserted the trocar into Plaintiff's abdomen
in an upward direction, contrary to standard
and accepted practices.
Thus, the only issue on appeal is whether
Plaintiff introduced sufficient evidence at
trial to require that the trial court instruct
the jury on the doctrine . . . .
We hold that plaintiff was not entitled to such an instruction.
We recognize that the doctrine of res ipsa loquitur,
in its distinctive sense, permits negligence
to be inferred from the physical cause of an
accident, without the aid of circumstances
pointing to the responsible human cause.
Where this rule applies, evidence of the
physical cause or causes of the accident is
sufficient to carry the case to the jury on
the bare question of negligence. But where
the rule does not apply, the plaintiff must
prove circumstances tending to show some fault
of omission or commission on the part of the
defendant in addition to those which indicate
the physical cause of the accident.
Harris v. Mangum, 183 N.C. App. 235, 237, 111 S.E. 177, 178 (1922).
Therefore, “'[r]es ipsa loquitur (the thing speaks for itself)
simply means that the facts of the occurrence itself warrant an
inference of defendant's negligence, i.e., that they furnish
circumstantial evidence of negligence where direct evidence of it
may be lacking.'” Sharp v. Wyse, 317 N.C. 694, 697, 346 S.E.2d485, 487 (1986) (emphasis in original) (quoting Kekelis v. Ma
chine
Works, 273 N.C. 439, 443, 160 S.E.2d 320, 323 (1968). However,
applicability of the res ipsa loquitur
doctrine depends on whether as a matter of
common experience it can be said the accident
could have happened without dereliction of
duty on the part of the person charged with
culpability.
The doctrine is grounded in the superior
logic of ordinary human experience; [and] it
permits a jury, on the basis of experience or
common knowledge, to infer negligence from the
mere occurrence of the accident itself.
However, application of the doctrine based on
common knowledge is allowed only when the
occurrence clearly speaks for itself.
57B Am. Jur. 2d, Negligence § 1826 (1989) (emphasis added)
(footnotes omitted). Therefore, in order for the doctrine to
apply, not only must plaintiff have shown that his injury resulted
from defendant's insertion of the trocar into plaintiff's abdomen,
but plaintiff must have been able to show -- without the assistance
of expert testimony -- that the injury was of a type not typically
occurring in absence of some negligence by defendant. Id. Thus,
expert proof of the standard of care should not have been necessary
for plaintiff to show a jury that defendant was negligent.
In his brief to this Court, plaintiff concedes that our Courts
“have been somewhat restrictive in the application of the doctrine
. . . in medical malpractice cases.” Further, plaintiff states
that he “is aware that . . . this Court has voiced disfavor at the
practice of using expert testimony in res ipsa loquitur cases,
stating that the facts must be such that the jury can infer
negligence from common experience.” Nevertheless, plaintiff arguesthat, although the trial court relied on Prosser and Keeton on t
he
Law of Torts § 39 (5th ed. 1984) in establishing its view of
disallowing medical testimony to prove the doctrine's
applicability, he can “find[] nothing in th[e] [treatise's] passage
to advocate a preclusion of the use of expert testimony in res ipsa
loquitur cases.” We are unpersuaded by plaintiff's argument, if
for no other reason than that this Court has long held the position
that in order for res ipsa loquitur to apply, the negligence
complained of must be of the nature that a jury -- through common
knowledge and experience -- could infer. Bowlin v. Duke
University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 323 (1992)
(“injury to the sciatic nerve during a bone marrow harvest
procedure is peculiarly the subject of expert opinion, and a layman
would have no basis for concluding that defendant was negligent in
extracting the marrow”). See also, Grigg v. Lester, 102 N.C. App.
332, 335, 401 S.E.2d 657, 659 (1991) (any layman could properly
infer the tear in plaintiff's abdomen sustained during caesarean
section resulted from force applied by the physician; however, “in
the absence of [expert] testimony . . . , a layman would have no
basis for concluding that the force exerted was either improper or
excessive”); and, Jackson v. Stancil and Smith v. Stancil, 253 N.C.
291, 297, 116 S.E.2d 817, 821 (1960) (“the doctrine of res ipsa
loquitur does not apply, 'it being common knowledge that aeroplanes
do fall without fault of the pilot'”) (quoting Smith v. Whitley,
223 N.C. 534, 535, 27 S.E.2d 442, 443 (1943)). In the case at bar, plaintiff's expert, Dr. A. R. Moosa
testified that the proper method for inserting the trocar into a
patient's abdomen was at a downward angle, and “[i]t has to be
inserted very, very carefully because if you push too forcefully or
in the wrong direction you may perforate something that you don't
intend to.” Thus, it was Dr. Moosa's opinion that defendant was
negligent in his insertion of the trocar into plaintiff's abdomen.
However, defendant presented evidence that “even with proper
application of technique, the injury sustained by [plaintiff] was
a complication of the procedure.” Furthermore, another of
plaintiff's experts, Dr. Alice Seldon, who was actually present at
some point during plaintiff's surgery, testified that the trocar no
doubt caused the injuries; however, the trocar “wasn't angled up.
It was angled . . . like toward the middle and maybe a little bit
toward the feet.” “[T]he way you're taught to do it . . . .”
Furthermore, in response to whether the injuries plaintiff
sustained could happen even when the surgeon is doing exactly what
they were taught to do, Dr. Seldon responded:
Yes. In fact, it's happened. That's one
of the reasons that it's not done that way
anymore. That procedure has changed from a
blind procedure to an open procedure. Because
even if you did it the exact same way that you
were taught, you ran into problems, mind you
not often, but often enough that the procedure
was changed [since the time plaintiff had his
surgery].
This Court does not believe, that the proper standard of care
or surgical procedure for gallbladder removal nor its attendant
risks are within the common knowledge or experience of a jury. Thus, expert testimony was not only proper but necessary. As such,
because there was conflicting expert testimony as to defendant's
negligence, we cannot therefore hold that “the injury is one that
[would] not ordinarily occur in the absence of some negligent act
or omission” by defendant. Grigg, 102 N.C. App. at 333, 401 S.E.2d
at 658. Our ruling is borne out by evidence reflecting that
plaintiff's injuries are not all that uncommon but are known to
occur when the operating physician utilizes the blind insertion
technique -- a technique that was commonly used at the time
plaintiff had his surgery but which, has since changed, due to
these types of injuries. “This Court has consistently reaffirmed
that res ipsa loquitur is inappropriate in the usual medical
malpractice case, where the question of injury and the facts in
evidence are peculiarly in the province of expert opinion.”
Bowlin, 108 N.C. App. at 149-50, 423 S.E.2d at 323. See also,
Elliot v. Owen, 99 N.C. App. 465, 393 S.E.2d 347 (1990). Thus, we
cannot deviate from the precedent set. We therefore hold that
plaintiff was not entitled to a jury instruction on the doctrine of
res ipsa loquitur. Accordingly, we find no error in the trial
court's decision to deny plaintiff's request for such instruction.
No error.
Judges LEWIS and WALKER concur.
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