Texas PJC Malpractice 2022

PJC 51.8

M EDICAL M ALPRACTICE —T HEORIES OF D IRECT L IABILITY

PJC 51.8 Res Ipsa Loquitur—Medical (Comment) Res ipsa loquitur under Medical Liability Act. Tex. Civ. Prac. & Rem. Code §74.201 provides as follows: “The common-law doctrine of res ipsa loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of August 29, 1977.” As noted in Haddock v. Arnspiger , 793 S.W.2d 948 (Tex. 1990), “[A]ppellate courts before August 29, 1977 overwhelmingly recognized that res ipsa loquitur was inapplicable in medical malpractice cases subject to certain exceptions.” Haddock , 793 S.W.2d at 951. Exceptions to general inapplicability. “[A]n exception is recognized when the nature of the alleged malpractice and injuries are plainly within the common knowl edge of laymen, requiring no expert testimony. Examples of this exception include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body.” Haddock , 793 S.W.2d at 951. Expert testimony may not establish predicate. In Haddock the plaintiff sought to establish by expert testimony that an injury involving a mechanical instrument could not have occurred without negligence. The court held that this predicate of res ipsa loquitur could not be established by expert testimony and that, in the case of mechanical instruments, the doctrine may not be applied when the use of the instru ment is not a matter within the common knowledge of laymen. Haddock , 793 S.W.2d at 950. Rule of evidence only—negligence and proximate cause still required. “ Res ipsa loquitur is simply a rule of evidence by which negligence may be inferred by the jury; it is not a separate cause of action from negligence.” Haddock , 793 S.W.2d at 950. Although medical testimony of negligence is not required when the doctrine is properly invoked, negligence and proximate cause still must be proved. For example, in Martin v. Petta , 694 S.W.2d 233, 240 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.), the trial court was held not to have erred in rendering summary judgment for the physician, because the evidence was uncontroverted that he exercised no control over the instrumentality alleged to have caused the injury. Sample instruction. For cases in which the doctrine is held to apply, the follow ing instruction is suggested as a model: In answering this question, you may infer negligence by a party but are not compelled to do so if you find that (1) the character of the occurrence is such that it would ordinarily not happen in the absence of negligence and (2) the instrumentality causing the occurrence was under the management and control of the party at the time that the negligence, if any, probably occurred.

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