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Court of Appeals Res Ipsa Loquitur Case

The North Carolina Court of Appeals ended 2014 by issuing a number of opinions last Wednesday. Among them was Wright v. Wakemed, which involved a medical malpractice claim not certified pursuant to Rule 9(j). The plaintiff argued that the doctrine of res ipsa loquitur applied and the Rule 9(j) certification was unnecessary. The court of appeals disagreed and affirmed the trial court’s order dismissing the claim for failure to include the Rule 9(j) certification.

In Wright, the plaintiff was admitted to the defendant hospital for spinal surgery. After the surgery, the plaintiff was transferred from the hospital to the rehab center. When the plaintiff was transferred, the hospital issued admission orders, which included a list of medications the plaintiff should take while at the rehab center. The hospital negligently included in this list of medications Xanax, Geodon and Lithium, which caused the plaintiff to suffer from “an episode of somnolence and lethargy” for several days.

When the plaintiff filed a complaint seeking damages against the defendant hospital, she alleged medical malpractice under the theory of res ipsa loquitur, which does not require a Rule 9(j) certification. The trial court disagreed and dismissed the plaintiff’s complaint.

The court of appeals began its analysis by looking at Rule 9(j), which states in part that

Any complaint alleging medical malpractice by a health care provider pursuant to [N.C. Gen. Stat. §] 90-21.11(2)a. in failing to comply with the applicable standard of care under [N.C. Gen. Stat. §] 90-21.12 shall be dismissed unless:

(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under [N.C. Gen. Stat. § 8C-1,] Rule 702 [] and who is willing to testify that the medical care did not comply with the applicable standard of care; [or]

. . . .

(3) The pleading alleges facts establishing negligence under the existing common law doctrine of res ipsa loquitur.

The court then turned to the established law regarding res ipsa loquitur. It noted that previous case law explained that “[r]es ipsa loquitur (the thing speaks for itself) simply means that the facts of the occurrence itself warrant an inference of defendant’s negligence, i.e., that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking.” North Carolina courts have held that “[t]he doctrine of res ipsa loquitur applies when (1) direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident is under the defendant’s control, and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission.”

A plaintiff can only successfully assert a claim based on res ipsa loquitur when he shows “ – without the assistance of expert testimony – that the injury was of a type not typically occurring in the absence of some negligence by defendant.” Because res ipsa loquitur only applies when there is no direct proof of the cause of the plaintiff’s injury, “a plaintiff is not entitled to rely on it in the event that there is direct evidence of the reason that the plaintiff sustained the injury for which he or she seeks relief.”

For res ipsa loquitur to properly apply, the alleged facts must be such that “a layperson could infer negligence by the defendant based on common knowledge and ordinary human experience.” In most medical malpractice cases, res ipsa loquitur is inappropriate because “the question of injury and the facts in evidence are peculiarly in the province of expert opinion.” However,

where proper inferences may be drawn by ordinary men from approved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things, where proper care is exercised.

The plaintiff is Wright alleged that her injuries were caused by ingesting specific medications which she should not have received and that she received these medications because they were included on the admission orders from the hospital to the rehab center. The court reasoned that “[a]s a result, Plaintiff has explicitly alleged that she was injured in a specific manner by a specific act of negligence, a fact that bars her from any attempt to rely on the doctrine of res ipsa loquitur.”

The court further reasoned that expert testimony would be necessary in this case to establish the cause of the plaintiff’s injuries. In a 2012 court of appeals case, Smith v. Axelbank, the plaintiff alleged that she was injured because of the defendant’s negligence in prescribing a medication. The court in Axelbank held that “a lay person would not be able to determine that plaintiff’s injury was caused by Seroquel or be able to determine that Dr. Axelbank was negligent in prescribing the medication to plaintiff without the benefit of expert witness testimony.”

In this case too the court concluded that “a jury would not be able to determine whether Plaintiff’s injury resulted from the ingestion of Xanax, Geodon, and Lithium without having the benefit of expert witness testimony, since a lay juror would not necessarily know what these medications are, how they affect the human body, and how they might be expected to affect Plaintiff specifically.”

The court further explained that although the act of inaccurately copying the medications onto the plaintiff’s admission orders might be negligent and fail to meet the applicable standard of care, a legal claim for damages based on this act must show that this failure caused the plaintiff’s injuries. “[T]he average juror [is] unfit to determine whether [P]laintiff’s [somnolence and lethargy] would rarely occur in the absence of the ingestion of Xanax, Geodon, and Lithium.” Because the plaintiff could not “demonstrate that the injuries of which she complains resulted from this specific negligent act in the absence of expert testimony,” she could not state a claim based on the doctrine of res ipsa loquitur. Therefore, the trial court’s dismissal of her claim was proper.

If you have been injured by an act of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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