1. It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when:
a. the event is of a kind which ordinarily does not occur in the absence of negligence;
b. other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
c. the indicated negligence is within the scope of the defendant's duty to the plaintiff. Leone v. Thomas, 428 Pa. Super. 217, 220 (1993).
Plaintiffs can utilize res Ipsa in Pennsylvania medical malpractice lawsuits. All three of the above elements must be established. Then, and only then, it is for the jury to determine whether the inference of negligence can be drawn.
Whether res ipsa loquitor applied to a medical malpractice action arose in the case of Leone v. Thomas. In that case the defendant doctor performed a surgery to cut out a cyst from the plaintiff’s left knee. After the surgery, the plaintiff suffered a loss of feeling in her left foot that was determined to have been caused by damage to a nerve. The Plaintiff offered expert testimony from a doctor who testified that the defendant’s treatment was substandard. Despite this the trial court refused to instruct the jury on the doctrine of res ipsa loquitor. The Superior Court deemed this a mistake for two reasons.
First, the trial court improperly required the plaintiff to prove that her injuries could not have occurred in the absence of negligence. The Superior Court held that the plaintiff only needed to prove that negligence was more probable than not.
Second, the trial court improperly required the plaintiff to prove that there were no other possible causes of the nerve injury. The Superior Court, however, held that the plaintiff was not required to exclude all other possible explanations for the injury. Rather, the Superior Court determined that it was sufficient that negligence on the part of the defendant was the more probable explanation of the injury suffered, not that it was the only way it could have happened.
The Superior Court held that a jury is always permitted to reasonably infer both negligence and causation from the occurrence of an unusual event and the defendant’s relation to it.
In my next post, I will discuss how the doctrine of res ipsa loquitor may be applied to Pennsylvania malpractice lawsuits arising out of patients’ exposure to improperly disinfected surgical instruments.
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