SW Legal studies in Business

Res Ipsa Loquitur May Be Basis for Jury to Impose Liability
Description Washington high court held that in a suit for medical malpractice there are some occurrences that do not need expert testimony to prove negligence. Things that occur that are within the experience of a layperson can be shown by res ipsa loquitur to be the basis for negligence to be proven.
Topic Torts
Key Words Expert Testimony; Res Ipsa Loquitur
C A S E   S U M M A R Y
Facts Miller was operated on for kidney problems. The surgeon, Ireton, placed a drain in the wound to help healing. He intended that the drain would be removed several days later. Dr. Jacoby changed the dressing on the wound a couple days later and said the drain should be removed the next day. When a nurse went to remove the drain, she had difficulty and called Jacoby to remove it, which he did. Several months later, examination of Miller's continued pain showed that part of the drain had not been removed successfully, which required surgery to remove the piece that had broken off. Miller sued for malpractice. The trial court held for defendants, relying on expert testimony that Jacoby "met the standard of care of a reasonably prudent urologist." The court of appeals affirmed. Miller appealed.

Reversed. Expert medical testimony is required to establish whether or not there was negligence in the inserting of the drain during surgery, as that is a complex matter not within the ordinary experience of a layperson. However, expert testimony is not required to establish that there was negligence in failing to remove the drain completely. A breach of a duty of care may be proven by circumstantial evidence under the doctrine of res ipsa loquitur (the thing speaks for itself). Three criteria must be met: 1) the occurrence producing the injury must be of a kind which ordinarily does not occur in the absence of negligence; 2) the injury is caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the injury-causing occurrence must not be due to any contribution on the part of the plaintiff. A jury could impose liability on the basis of res ipsa loquitur under the circumstances of this case once it is established who was responsible for Miller's care at the time the drain was removed.

Citation Miller v. Jacoby, 33 P.3d 68 (Sup. Ct., Wash., 2001)

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