Revisiting The Role Of Res Ipsa Loquitur In Medical Malpractice Cases - DD 12/03

Defense Digest

Revisiting The Role Of Res Ipsa Loquitur In Medical Malpractice Cases

On May 29, 2003, the Pennsylvania Supreme Court issued a decision that sharply limits the use of res ipsa loquitur in medical negligence cases.  Res ipsa loquitur is a legal doctrine that obviates the need for expert testimony and permits a jury to infer negligence and causation where the injury at issue does not ordinarily occur in the absence of negligence.

The facts of Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003), are simple.  The plaintiff received a nerve block injection to treat ongoing back pain.  Shortly after the injection, he was treated for a pneumothorax, or punctured lung.  The plaintiff was permitted to proceed to trial without any expert testimony, arguing that his punctured lung would not have occurred in the absence of negligence.  A Philadelphia jury returned a verdict for the plaintiff in the amount of $465,000.  The Pennsylvania Supreme Court majority overturned the verdict and entered judgment for the defense.  The Court held that the plaintiff should have been required to present expert testimony because lay jurors lack sufficient knowledge to determine whether a punctured lung would result from a nerve block in the absence of negligence. 

While the facts of Toogood are straightforward, the Supreme Court's broad language suggests a sweeping attack on the use of res ipsa loquitur in medical malpractice cases.  Characterizing res ipsa loquitur as "[a] very narrow exception to the requirement of expert testimony," the Court (per Justice Sandra Schultz Newman) wrote that the doctrine "must be carefully limited, for to say whether a particular error on the part of a physician reflects negligence demands a complete understanding of the procedure the doctor is performing and the responsibilities upon him at the moment of injury."  Since medicine is "an applied science," the Court reasoned, "the realm of reasonable choice is best defined by those engaged in the practice, and expert medical testimony on this issue is required."  Reviewing the historical evolution of res ipsa loquitur, the Court concluded that the doctrine traditionally "was reserved for obvious cases in which lay jurors could apply their own knowledge and common sense to establish the cause of the injury and deduce an inference of negligence.  These were typically the 'sponge left in the patient' cases."  Based on its review, the Court reaffirmed that "the only exception to the requirement that expert testimony must be produced is where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons."

As a result, the Court held that the following conditions must be met before res ipsa loquitur may be invoked:

1. Either a layperson is able to determine as a matter of common knowledge, or an expert testifies, that the result which has occurred does not ordinarily occur in the absence of negligence;
2. The agent or instrumentality causing the harm was within the exclusive control of the defendant; and
3. The evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event.

While these factors apply to all negligence cases in which a plaintiff relies on the doctrine of res ipsa loquitur, public policy considerations mandate that the doctrine should be given an especially narrow application in medical malpractice cases.  In closing its opinion, the Court enunciated these policy considerations as follows:

Public policy reasons exist for protecting physicians by limiting res ipsa loquitur inferences in medical cases, which must be weighed against the policy concerns of protecting the general public. First, doctors hold an important place in our society due to the role that they play in the health and even survival of the peoples of this nation. For that reason, society should not allow a doctor's actions to be second-guessed at trial without a clear understanding of the standards required. Second, medicine is not an exact science. Much discretion exists in a doctor's practice of medicine that should not be condemned in hindsight. Third, the practice of medicine is a complex and experimental field. Therefore, expert testimony is necessary to prevent a finding of liability for a simple mistake of judgment, failure of treatment, or an accidental occurrence.

Relaxing the burden of proof in medical malpractice cases might correct a perceived unfairness to some plaintiffs who could prove the possibility that medical malpractice caused an injury but could not prove its probability. However, health care providers might then find themselves defending cases simply because a patient failed to improve or when serious disease processes were not arrested and where another course of action might possibly have brought a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove that the alleged negligence probably, rather than possibly, caused the injury. Thus, we cannot approve the substitution of such an obvious inequity for a perceived one.

In this passage, and in other portions of the Toogood opinion, defense attorneys will find powerful ammunition with which to oppose the use of res ipsa loquitur in medical malpractice cases.

*John, a shareholder and Chair of the firm's Appellate Advocacy Practice Group, can be reached at (215) 575-2609 or jhare@mdwcg.com.