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Res Ipsa Loquitur in Medical Malpractice Claims in North Carolina

North Carolina statute contains heightened pleading requirements for medical malpractice complaints.  Specifically, G.S. 1A-1 Rule 9(j) states that

Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 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 Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;

(2)    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 that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

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

The exception to the requirement that the plaintiff’s medical care be reviewed by an expert is when the doctrine of res ipsa loquitur applies.  Literally, res ipsa loquitur means “the thing speaks for itself.”  The North Carolina Supreme Court has held that “res ipsa loquitur claims are normally  based on facts that permit an inference of defendant's negligence.” (Anderson v. Assimos 2002)  The North Carolina Court of Appeals has further explained that “res ipsa loquitur applies in "situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [a] defendant."” (Snipes v. Warren 2007)

In determining whether res ipsa loquitur applies, North Carolina courts employ a three prong test.  The doctrine is applicable when

(1) "the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission," (2) "direct proof of the cause of [the] injury is not available," and (3) "the instrumentality involved in the accident is under the defendant's control."

(Schaffner v. Cumberland County Hospital System, Inc. 1985)

The Court of Appeals has urged a “somewhat restrictive” application of the doctrine of res ipsa loquitur, based on the reasoning “that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate” and “the scientific and technical nature of medical treatment, renders the average juror unfit to determine whether plaintiff's injury would rarely occur in the absence of negligence.” (Schaffner)

The Court of Appeals has recognized two situations to which the doctrine of res ipsa loquitur is applicable.  Those are “injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient's anatomy outside of the surgical field.”  (Griggs v. Lester 1991)  The Court of Appeals has also encouraged “trial courts to remain vigilant and cautious about providing res ipsa loquitur as an option for liability in medical malpractice cases other than in those cases where it has been expressly approved.” (Howie v. Walsh 2005)  However, the Court of Appeals has stopped short of limiting the doctrine to only these two situations.  (Robinson v. Duke Univ. Health Sys., Inc. 2013)

The application of the doctrine of res ipsa loquitur does not shift the burden of proof to the defendant.  The burden of proof remains with the plaintiff.  The application of res ipsa loquitur creates a presumption of negligence “on a defendant who fails to produce evidence establishing lack of negligence. Where defendants are in a position of superior knowledge regarding what transpired and, acting in concert, were in control of the only instrumentalities which could have caused plaintiff's injury, such a reduction in plaintiff's burden of production is justified.”  (Schaffner)

The Schaffner case contains a clear application of the three prong test that the courts have applied to res ipsa loquitur cases.  In Schaffner, the plaintiff underwent a surgery and suffered a burn on a body part not involved in the surgery.  Under the first prong, the court reasoned that “a jury, based on common knowledge and experience, could reasonably conclude that a burn on a portion of her body not involved in the surgery was not among [the] risks” commonly associated with the surgery and, but for someone’s negligence, she would not have suffered them.  The court reasoned that the second prong was met because the plaintiff was anesthetized and could not offer an account of the injury.  Under the third prong, the court reasoned that the defendants were in control of “plaintiff's person and of all instruments in the operating room.”  Therefore, the doctrine of res ipsa loquitur applied.

What are some other cases in which courts have held that res ipsa loquitur applies?  In Tice v. Hall (1984), a sponge was left in a patient’s body after surgery.  The court held that “the well-settled law in this jurisdiction is and has been that "a surgeon is under a duty to remove all harmful and unnecessary foreign objects at the completion of the operation. Thus the presence of a foreign object raises an inference of lack of due care."”  The defendant argued that he met the standard of care because of the counting procedure employed in the collection of sponges.  The court reasoned that the doctrine of res ipsa loquitur merely created a presumption of negligence and that the defendant could introduce evidence that he complied with the statutory standard.  The issue would then be left to the trier of fact.

Another case in which the court found that res ipsa loquitur applied was Robinson v. Duke Univ. Health Sys., Inc. (2013).  In Robinson, the plaintiff underwent a colectomy, a procedure that removes a portion of the intestine and reattaches the intestine to the rectum.  After surgery, the plaintiff experienced body fluid passing from the vagina and found that the intestine was reattached to the vagina instead of the rectum.  Although these facts did not fit either of the two situations specifically authorized by the courts to apply res ipsa loquitur, the court reasoned that even though a colectomy was a procedure, “an understanding of the requisite techniques employed during the procedure is not required for a layman to determine that Robinson's small intestine should not have been connected to her vagina during the procedure and that such an anatomical result following surgery does not normally occur in the absence of negligence.”

What are some situations in which courts have held that res ipsa loquitur does not apply?  In the 2007 Court of Appeals case Snipes v. Warren, the plaintiff claimed that her fractured pelvic bone was caused by the negligence of a chiropractor.  The court held that res ipsa loquitur did not apply because “the average juror could not, based on that juror's common knowledge or experience, be able to infer that the type or amount of force used by defendant, Dr. Warren, during his manipulation of plaintiff was in any way excessive or improper.”

The Court of Appeals came to the same conclusion in another broken bone case.  In Howie v. Walsh (2006), the plaintiff’s jaw was fractured during a dental procedure to extract a wisdom tooth due to alleged excessive force used.  The Court of Appeals held that res ipsa loquitur did not apply because “without the assistance of expert testimony, the layperson would lack a basis upon which he could determine the force was excessive or improper as such matters are outside his common knowledge, experience and sense.”

Another case in which the Court of Appeals held that res ipsa loquitur did not apply was Grigg v. Lester (1991).  In that case, the plaintiff suffered an irreparable tear in the rear wall of her uterus during a C-section, after which the doctor had to perform a hysterectomy.  The court’s reasoning was similar to that employed in Snipes and Howie.  It held that although a layman could infer that the tear resulted from force applied during the C-section, “in the absence of testimony by someone knowledgeable and expert in such matters, a layman would have no basis for concluding that the force exerted was either improper or excessive.”

Other situations involve procedures too complex to apply the doctrine of res ipsa loquitur.  In Hayes v. Peters (2007), the plaintiff had a GI scope, during which air emboli got into the central nervous system causing the plaintiff to suffer a stroke. In Bowlin v. Duke University (1992), the plaintiff underwent a bone marrow harvesting procedure, during which a sciatic nerve was injured.  The Court of Appeals held in both of these cases that the procedures were beyond the understanding of the average juror and that res ipsa loquitur did not apply.

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