Day on Torts
When an HCLA plaintiff proceeds under a res ipsa loquitur theory, her expert is not required to opine on the same elements as in a traditional HCLA claim.
In Anderson v. Wang, No. M2018-00184-COA-R3-CV (Tenn. Ct. App. Oct. 5, 2018), plaintiff had laser cataract surgery performed on both eyes by defendant doctor. After the second surgery on her right eye, plaintiff experienced serious complications, including extreme loss of endothelial cells and corneal decomposition that required a corneal transplant.
Plaintiff brought this HCLA case under Tenn. Code Ann. § 29-26-115(c), which governs HCLA res ipsa loquitur claims. This section states that “there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant’s…exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.” The trial court granted defendant’s motion for summary judgment, finding that plaintiff’s expert “never defined the applicable standard of care or how any instrumentality could have been improperly used contrary to the applicable standard of care.” The Court of Appeals, however, reversed.
In its analysis, the Court of Appeals found:
[T]he trial court’s ruling conflates the requirements of section 29-16-115(a) with the res ipsa loquitur requirements of section 29-26-115(c). Because [plaintiff] was proceeding on res ipsa loquitur grounds, her expert was not required to: (1) “state to any degree of medical certainty which instrumentation in the exclusive control of [defendant] probably caused [plaintiff’s] injuries;” (2) “indicate a probable breach of the standard of care;” or (3) “define the applicable standard of care.”
To defeat the motion for summary judgment, then, plaintiff here needed only to establish a question of fact regarding the two elements listed in subsection (c), and the Court ruled that she did.
Regarding the exclusive control of the instruments, the plaintiff pointed to the defendant’s own deposition testimony, wherein he stated had he “had exclusive control of the instrumentation throughout both surgical procedures.” The Court specifically noted that plaintiff did not need to be able to prove exactly which surgical instrument caused the injury, as the inability to do so was the essence of why this was a res ipsa loquitur case.
For the second element, the plaintiff’s expert testified that this was not the type of injury that usually occurred in the absence of negligence. He stated that the type of permanent corneal swelling she experienced would be “very, very, very uncommon,” and that the level of decomposition was “as close to never as you can imagine.” He stated that “he could not ‘think of a plausible reason why [plaintiff] ended up with the corneas that she has under normal circumstances.’”
The Court found that the plaintiff presented enough evidence to create an issue of fact on both elements of her res ipsa loquitur claim, and summary judgment was reversed.
This is a good opinion analyzing the elements of a res ipsa loquitur HCLA claim, with a description of the distinction between what a plaintiff proceeding under this theory must show as opposed to a traditional HCLA claim. Attorneys filing res ipsa loquitur health care claims would be wise to read this short opinion.