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§47.35 Res Ipsa Loquitor

The Case: Flowers v. HCA Health Services of Tennessee, Inc ., No. M2004-02126-COA-R9-CV, 2006 WL 627183 (Tenn. Ct. App. Mar. 14, 2006).

The Basic Facts: Patient died of a morphine overdose while receiving morphine via a PCA. The pump was not defective. Patient's family sued hospital for medical negligence.

The Bottom Line:

  • "The rule of evidence known as res ipsa loquitur comes to the aid of plaintiffs who have no direct evidence of a defendant's negligence, Provident Life & Accident Ins. Co. v. Professional Cleaning Serv., Inc., 396 S.W.2d 351, 356 (Tenn. 1965), by providing a process for considering circumstantial evidence. Poor Sisters of St. Francis v. Long, 230 S.W.2d 659, 663 (Tenn. 1950). It permits, but does not require, a fact finder 'to infer negligence from the circumstances of an injury.' Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Shivers v. Ramsey, 937 S.W.2d 945, 949 (Tenn. Ct. App. 1996)." 2006 WL 627183 at *2.
  • "Though it is not frequently applied, the doctrine of res ipsa loquitur may be applied in a medical malpractice action. Seavers, 9 S.W.3d at 91-92. Although the use of res ipsa loquitur was previously restricted to the realm of cases within the common knowledge of the jury, FN2 in 1999 our Supreme Court expanded its use by holding that 'expert testimony may be used to establish a prima facie case of negligence under res ipsa loquitur.' Seavers, 9 S.W.3d at 94-95 (overruling prior case law that prohibited the use of the doctrine if expert testimony was required). The court further explained that 'res ipsa loquitur is no longer confined in Tennessee to the realm of cases within the 'common knowledge' of the jurors. Instead, res ipsa loquitur may be used in combination with expert testimony to raise an inference of negligence, even in those cases where expert testimony is required.' Seavers at 98 (Order Denying Petition To Rehear).
    FN2 Examples of common knowledge cases are those where a sponge is left in the patient's body following surgery or where the patient's eye is cut during an admission for an appendectomy. See Rural Educ. Ass'n v. Bush, 298 S.W.2d 761 (Tenn. Ct. App. 1956); Meadows v. Patterson, 109 S.W.2d 417 (Tenn. 1937)."
    Id . at *3.
  • "The application of the doctrine was the only issue on appeal in McConkey v. State, 128 S.W.3d 656, 659‑660 (Tenn. Ct. App. 2003), a medical malpractice action. The issue was whether the plaintiff satisfied his burden of proof under res ipsa loquitur. In its analysis, the court first noted that medical malpractice actions are governed by Tenn. Code Ann. § 29‑26‑115, which states the plaintiff shall have the burden of proving: the recognized standard of acceptable professional practice; the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and as a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. The court then noted that in medical malpractice actions there shall be no presumption of negligence on the part of the defendant; 'provided, 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.' McConkey, 128 S.W.3d at 659‑660 (citing Franklin v. Collins Chapel Connectional Hosp., 696 S.W.2d 16, 19 (Tenn. Ct. App. 1985) (quoting Sullivan v. Crabtree, 258 S.W.2d 782, 783‑84 (1953) (citation omitted)). The rebuttable presumption the court was referring to is of course the doctrine of res ipsa loquitur, which has been codified in Tenn. Code Ann. § 29‑ 26‑115(c). The doctrine as codified provides:
    [W]here the thing [causing the harm] is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
    Tenn. Code Ann. § 29‑ 26‑115(c)." Id.
  • "In the case before us, the few material facts which do not appear to be disputed are that Mrs. Flowers had in-patient surgery at Southern Hills Medical Center after which she remained hospitalized; post-surgery a nurse or nurses administered intramuscular injection(s) to relieve pain; a PCA pump was also provided to Mrs. Flowers for self-administration of morphine; the PCA pump was not defective, and in the early morning hours of January 11 Mrs. Flowers was found lying in her hospital bed unconscious and without a pulse, shortly after which she was pronounced dead. In addition to the foregoing, Plaintiffs provided evidence, which Defendants either dispute or do not admit, that the morphine in Mrs. Flowers blood system was above the lethal level and that her death was the result of an overdose of morphine.FN3
    FN3 One of Plaintiffs' contentions is that a nurse or nurses negligently administered bolus dose(s) of morphine after the PCA pump was provided. A bolus dose is a concentrated mass of a substance administered intravenously, which is typically administered by a health care practitioner, usually a nurse, as distinguished from a self-administered dose activated by the patient."
    Id .
  • "Plaintiffs rely in part on the autopsy report, which states the cause of death to be a morphine overdose. Defendants challenge the medical conclusion. The cause of death is a disputed and material fact. Whether the excessive dosage of morphine was due to the PCA pump or a bolus dose or doses of morphine administered by a nurse or nurses are likewise disputed." Id. at *4.
  • "The trial court summarily dismissed the res ipsa loquitur claim because Plaintiffs conceded the PCA pump was not defective. Thus, the issue before this court is whether Plaintiffs' concession that the PCA pump was not defective defeats their res ipsa loquitur claim. We have concluded it does not." Id.
  • "An instrumentality need not be defective to cause injury. The fact the PCA pump was working properly does not preclude negligence by an HCA employee. It is not essential that the 'thing' or 'instrumentality' be defective for res ipsa loquitur to apply.
    Where the evidence shows an injury inflicted, and also the physical thing inflicting it, and that thing does not usually, or in the ordinary course, produce such a result where due care is exercised by those in charge of it, it may be inferred that those so in charge of the thing inflicting the injury failed to exercise due care; that is, that they were guilty of negligence.
    North Memphis Savings Bank v. Union Bridge & Construction Co. , 196 S.W. 492, 496 (Tenn. 1917) (emphasis added). Plaintiffs' concession the pump functioned properly does not prevent them from being able to establish that the instrumentality causing injury was in Defendant's exclusive control, and that the accident would not have occurred absent negligence on the part of Defendant. See Seavers, 9 S.W.3d at 96." Id.
  • "For these reasons, we find the trial court erred in summarily dismissing Plaintiffs' res ipsa loquitur claim based on the concession the pump functioned properly. Finding Plaintiffs' res ipsa loquitur claim survives summary judgment, we remand for further proceedings consistent with this opinion. Costs of appeal are assessed against Appellee, HCA Health Services of Tennessee, Inc." Id.

Other Sources of Note: Meek v. HealthSouth Rehabilitation Center of Clarksville , NO. M2005-00920-COA-R3CV, 2006 WL 2106001 (Tenn. Ct. App. July 28, 2006) (res ipsa not appropriate in post-surgery physical therapy case).

Recent Cases: 

Estate of Deuel v. The Surgical Center, PLLC, No. M2011-02610-COA-R3-CV (Tenn. Ct. App. Sept. 11, 2013) (holding that in a retained sponge case, plaintiff may rely on res ipsa loquitur  without presenting expert testimony to prove the standard of care or a breach, but defendant ay nonetheless introduce its own competent expert testimony); Smith v. Mills, No. E2010-01506-COA-R3-CV, 2011 WL 4553144 (Tenn. Ct. App. Oct. 4, 2011) (holding that res ipsa was not available in this case because plaintiff presented evidence at trial of specific acts of negligence); Deuel v. The Surgical Clinic, PLLC, No. M2009-01551-COA-R3- CV, 2010 WL 3237297 (Tenn. Ct. App. Aug. 16, 2010) (holding exclusive control requirement for res ipsa loquitur can apply even where others also had some control over the instrumentality that injured the plaintiff; holding that res ipsa loquitur creates an inference of negligence that, in most instances, effectively eliminates the possibility of summary judgment or directed verdict).

Cannon v. McKendree Village, Inc. , 295 S.W.3d 278 (Tenn. Ct. App. Nov. 25, 2008) (affirming trial court's finding that res ipsa loquitur doctrine did not apply because plaintiff failed to demonstrate that injury at issue does not ordinarily occur in the absence of negligence).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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