Salgo v. Leland Stanford Jr. University Board of Trustees

California Court of Appeal · Torts

TortsMedical MalpracticeInformed ConsentRes Ipsa Loquiturmedical malpracticeres ipsa loquiturinformed consentduty to disclose

Facts

Plaintiff, who suffered from severe circulatory disease and probable occlusion of the abdominal aorta, was referred to Dr. Gerbode, who recommended hospitalization and an aortography to locate the blockage and evaluate possible surgery. The aortography was performed by Dr. Ellis and a hospital team; Dr. Gerbode was present only briefly at the start, gave no instructions during the procedure, and did not participate in it. Two injections of sodium urokon were made during the procedure, and the next morning plaintiff awoke with permanent paralysis of his lower extremities. Plaintiff and his family testified he was not informed that a procedure like an aortography would be performed, while Dr. Gerbode and Dr. Ellis testified that plaintiff had been told of the procedure, though not its details or all possible dangers.

Issue

Was res ipsa loquitur properly applied and properly instructed upon in this malpractice case arising from paralysis after an aortography? Also, could Dr. Gerbode be held liable for negligence in the performance of the aortography by the hospital team, and were several other jury instructions erroneous?

Rule

In malpractice actions, res ipsa loquitur applies only where it is a matter of common knowledge among laymen or medical men, or both, that the injury would not have occurred without negligence. When the evidence conflicts as to whether the foundational facts for res ipsa exist, the jury must decide those facts; the court may not instruct that negligence is inferred as a matter of law from the occurrence itself. An attending physician who orders a procedure but neither participates in nor has the right to control its performance is not liable for the negligence of a competent hospital team performing it, absent an express or implied agreement that he would perform or direct the procedure. A physician must disclose facts necessary to form the basis of an intelligent consent, but retains discretion in discussing risks consistent with full disclosure necessary to informed consent.

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At a hospital in Phoenix, Nina Patel underwent a specialized catheter-based study to map blood flow before possible surgery. She awoke with permanent weakness in one leg. Her expert testified the imaging suggested the catheter was advanced into a branch vessel that should not have been entered, while defense experts testified the same injury can occur even when the catheter is properly placed because the contrast agent can unpredictably reduce circulation.

If Nina requests a jury instruction that negligence may be inferred as a matter of law from the occurrence itself, how should the court rule?

Explanation. Res ipsa loquitur in malpractice applies only when common knowledge of laymen or medical men, or both, indicates the injury would not have occurred without negligence. Where experts conflict on that predicate—here, improper placement versus a complication that can occur without negligence—the jury must decide whether the necessary facts exist. The court may not instruct that the inference arises as a matter of law from the event alone. (Derived from Salgo v. Leland Stanford Jr. University Board of Trustees (n.d.).)