Legal Briefs
WILLIAM R. KUCERA, JD
AANA Legal Counsel
Res Ipsa Loquitur, "The thing speaks for itself"...
especially regarding the unconscious patient
On August 24, 1973, a patient who had an extensive medical history of injuries and pain in
his back, right shoulder and lower extremities,
underwent an interior interbody discectomy and
fusion during which a defective disc was removed
from his spine. The space was plugged with a
piece of bone from his right iliac crest.
The operation was performed in a Chicago
hospital by a neurologist, who was assisted by
another doctor and an orthopedic surgeon. Also
present were an anesthesiologist and two nurses
who were employees of the hospital.
Following surgery, the patient was lifted off
the operating table, placed on a cart, and taken to
the recovery room. At approximately 2:00 p.m., he
was moved to his own room. At 6:00 p.m., he was
visited by a nurse who noted his complaint of an
inability to bend his left leg, and weakness and
numbness on his right side.
At 7:30 p.m. and again at 8:45 p.m., it was
noted that he could not move his legs and that he
complained of stiffness. At 10:15 p.m., a notation
recorded that he could move his right leg slightly.
He could not move his left leg at all, and he had a
higher than normal temperature of 102 degrees.
Because these complaints were not anticipated postoperative symptoms, the hospital personnel called
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the neurologist but failed to reach him. Although
the primary surgeon could not be reached, it
appears that no attempt was made to reach the
surgeon's assistants or any other neurosurgeon.
On the following day, the neurologist examined the patient and found that he had poor
hand, wrist, and leg movement, impaired sensation
and hyperactive reflexes. He diagnosed the patient's
condition as spastic quadriparesis, hyperactive
muscle tone restricting movement.
The surgeon felt the cause of the patient's
condition was spinal cord edema. He instituted a
course of drug therapy to reduce the swelling and
ordered continued observation of the patient's condition, which failed to improve. On August 27,
the surgeon and his assistant performed a myelogram which indicated a blockage at the seventh
cervical level. A laminectomy was immediately
performed, during which certain ligaments and
muscles were dissected and stripped, and extruded
bits of disc were removed.
The postoperative report recorded that no
evidence of spinal cord compression or edema was
found. The report also stated that "[i]t is not felt
that an adequate explanation for this patient's
difficulty with leg movement has been found."
The patient's condition was diagnosed as "cervical
myelopathy," an impaired function of the cervical
spinal cord. The patient lost the use of his limbs
and is a quadriplegic.
The patient and his wife filed a complaint on
August 9, 1974, claiming damages for injuries suffered by reason of the alleged negligence of defendants, (the neurologist, his assistant and the
orthopedic surgeon.) The hospital was sued in
separate counts based on the doctrine of res ipsa
loquitur. The complaint sought respectively, $5
million dollars for the patient's pain and injuries,
and $5 million dollars for his wife's loss of his consortium and services.
After evidentiary depositions and affidavits
were submitted, the Circuit Court of Cook County
granted the hospital's Motion for Summary Judg-
ment. The patient and his wife appealed the Circuit Court's judgment to the Appellate Court of
Illinois, First District, which reversed the Circuit
Court's decision. The hospital then appealed to
the Supreme Court of Illinois, which affirmed the
judgment of the Appellate Court. Kolakowski v.
Voris, 415 N.E.2d 397, Supreme Court of Illinois
(1980).
Proof of negligence by
circumstantial evidence
The plaintiff's complaint against the hospital
was brought under the doctrine of res ipsa loquitur
which roughly translates into "the thing speaks for
itself." This doctrine permits the jury to draw the
conclusion, from the occurrence of an unusual
event, that it happened through the defendant's
fault. Under this doctrine the happening itself
affords reasonable evidence, in the absence of explanation by the defendants, that the occurrence
as such would not have happened in the ordinary
course of things if the person charged with negligence had used proper care.
In essence, the purpose of the res ipsa doctrine
is to allow proof of negligence by circumstantial
evidence when the direct evidence concerning the
cause of injury is primarily within the knowledge
and control of the defendant (s). Whether the
doctrine applies in a given case is a question of
law which must be decided by the court, but once
this has been answered in the affirmative, it is for
the trier of fact (the jury) to weigh the evidence
and determine whether the circumstantial evidence
of negligence has been overcome by the defendant's
proof.
The burden of evidence shifts
In effect, the doctrine of res ipsa loquitur
shifts the evidentiary burden from the plaintiff to
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the defendant. Once the doctrine is ruled to be
applicable, the plaintiff need not introduce any
further specific evidence of cause and effect and
could choose to rely on the circumstantial inference
established by the doctrine itself. The circumstantial inference must he charged to the jury. The
defendant is charged with the burden of producing
evidence which will overcome this inference and
convince the jury that the injurious occurrence
was not the result of defendant's negligence.
The doctrine, therefore, helps the plaintiff
overcome two difficulties often encountered in
medical malpractice cases: (1) the inability to
obtain favorable expert testimony, and (2) the
inability to explain the events causing injury and
to prove specific acts of negligence by the defendant (s).
The factor which affords the Kolakowrski decision its vibrancy is the requirement that, in order
for the doctrine of res ipsa loquitur to apply, not
only must the occurrence itself be such that would
not ordinarily occur in the absence of negligence,
but also that the event or occurrence must have
been caused by an agency or instrumentality
within the exclusive control of the defendant.
The hospital contended that nothing within
the record before the Court raised an issue as to
whether anything under its control, or any failure
on its part to use proper care, could have caused
the patient's condition. The hospital argued that
the plaintiff was not entitled to rely on the res ipsa
loquitur doctrine because he was never in the
exclusive control of the hospital. Attorneys for the
hospital pointed out that at the time of the operation, the patient was also under the control of the
operating surgeons who were not agents or employees of the hospital.
Thus, the hospital argued that even if the
untoward result which befell the patient would
not ordinarily occur in the absence of negligence,
the circumstances would not permit the inference
that the negligence was that of the hospital, as distinquished from that of the surgeons who performed the operation.
The Supreme Court of Illinois clearly did
not agree with the hospital's argument. The Court
cited the landmark decision of the Supreme Court
of California, reached some 36 years prior in
Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687
(1944).There, it was similarly argued that since
the patient was under the care of a number of
persons, some of whom were not employees or
agents of the hospital, the element of control
necessary for the application of the doctrine of
res ipsa loquitur was absent. The Ybarra Court's
Journal of the American Association of Nurse Anesthetists
decision acknowledged the presence of res ipsa
loquitur, however; and that reasoning was the
basis for the Supreme Court of Illinois' statement:
"The present case is of a type which comes
within the reason and spirit of the res ipsa doctrine
more fully perhaps than any other . . . [I]t is
difficult to see how the doctrine can, with justification, be so restricted in its statement as to become
inapplicable to a patient who submits himself to
the care and custody of doctors and nurses, is
rendered unconscious, and received some injury
from instrumentalities used in his treatment.
Without the aid of the doctrine a patient who
received permanent injuries of a serious character,
obviously the result of someone's negligence, would
be entirely unable to recover unless the doctors
and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the
facts establishing liability."
The decision and its impact
The Illinois Supreme Court determined that
in the case before it, the patient was placed in
the care and custody of the named defendants at
the time of the alleged injury. Since the patient
was under a general anesthetic during surgery, he
was unable to determine the precise cause of his
injuries; the cause was thus held to be within the
exclusive knowledge of the defendants. Under
these circumstances the Court held that the plaintiff's only recourse was to rely on the doctrine of
res ipsa loquitur. The Court ruled that the hospital's "exclusive control" argument was manifestly
unfair because the physicians and the hospital
exercised concurrent control over the operation
and each owed an independent duty to the patient.
The holding in Kolakow1ski is a profound one
June/I981
indeed for the hospital and medical communities.
Under this decision, whenever a patient submits
himself to the care of a hospital and its staff and is
rendered unconscious for the purpose of surgery
to be performed by independent contracting surgeons, the control necessary under res ipsa loquitur
will have been met. In a properly pleaded case,
the burden will then shift to the hospital to dispel
the inference that it exercised the control necessary
to the application of the doctrine.
Of course, the doctrine of res ipsa loquitur
merely raises a presumption of negligence which
operates only to shift the burden of evidence to
the hospital. It is entirely possible that the defendant (s) will be capable of producing evidence
sufficient to convince the jury that the patient's
resultant condition was not caused by the negligence of the hospital or other named defendants
and thereby overcome the inference of negligence.
In this manner, the defendant-physicians or
hospital can protect themselves from cases of bad
results or failure to cure alone, and need not be
held to be a warrantor of cures. However, the
significance which the doctrine of res ipsa loquitur
has on both the ability and proclivity of plaintiffs
to establish a cause of action, and the significance
of the Kolakorwski decision in establishing the
doctrine's applicability in all well pleaded cases
when the patient is rendered unconscious for the
purpose of surgery, must be appropriately recognized for the precedent established.
The operating room has thus been transformed into a significantly more sensitive place in
which to practice, and those who anesthetize or
perform surgery upon patients or those who assist
in either of the aforementioned activities should
heed the notice advanced in the Kolakowski decision.
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