Barrett v. Emanuel Hospital

Oregon Court of Appeals · Torts

Tortsres ipsa loquiturmedical malpracticeres ipsa loquiturexclusive controlprobability of defendant responsibilityoperating room injurymultiple defendants

Facts

Plaintiffs alleged that Mr. Barrett suffered mental and nervous disorders as a result of knee surgery performed under general anesthesia. They asserted that all defendants jointly and in concert had exclusive control of Mr. Barrett and the instrumentalities used during surgery, but plaintiffs could not specify which defendant or which instrumentality caused the injury. On appeal, plaintiffs represented that they could not prove negligence against any defendant without a res ipsa loquitur inference applying to all medical and nursing personnel who participated in the surgery. Plaintiffs abandoned alternative theories and relied only on that collective res ipsa theory.

Issue

May a plaintiff who was unconscious during surgery invoke res ipsa loquitur against all participating medical defendants when the plaintiff cannot prove that the negligence of any particular defendant or defendants was probably the cause of the injury? More specifically, should Oregon adopt the Ybarra approach allowing such an inference against all possible actors in the operating room?

Rule

In Oregon, res ipsa loquitur permits only an inference of the ultimate fact of negligence, and that inference is available only when the plaintiff proves, among other things, that the injury was probably caused by some negligent conduct of a particular defendant or defendants. The doctrine does not apply merely because the plaintiff cannot identify which of several possible defendants in an operating room caused the harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Oregon, Lena Ortiz underwent abdominal surgery under general anesthesia at Roseview Medical Center. She awoke with a severe burn on her upper arm, but discovery showed that the surgeon, anesthetist, circulating nurse, and scrub nurse all handled different equipment near that arm, and Lena has no evidence making any one of them more likely than the others to have caused the burn.

Under Oregon law as stated by the majority opinion, may Lena rely on res ipsa loquitur against all four participants simply because she was unconscious and one of them was probably negligent?

Explanation. The majority rejected the rule allowing a plaintiff to proceed against all operating-room participants merely because the plaintiff cannot identify the responsible actor. In Oregon, the key is not mechanical exclusive control but whether the evidence affords a rational basis to conclude the negligence was probably that of the defendant or defendants sued. If the plaintiff cannot show that probability as to any particular defendant or set of defendants, res ipsa does not apply.