Mireles v. Broderick

827 P.2d 847, 113 N.M. 459

• Court: New Mexico Court of Appeals
• Decided: February 27, 1992
• Docket: 11054
• Status: Published

Opinions

OPINION

HARTZ, Judge.

The Plaintiff, Mary Ann Mireles, appeals from an adverse verdict in a medical malpractice case. She contends that the district court committed reversible error by refusing to give the jury her tendered instruction on res ipsa loquitur. The Defendant, Dr. Thomas Broderick, argues that (1) the doctrine of res ipsa loquitur was inapplicable because (a) a claim under res ipsa loquitur should not be based, as it was here, on expert testimony, (b) Plaintiff also relied upon a specific theory of how the accident occurred, and (c) Plaintiff did not establish the exclusive control by Defendant that is a necessary predicate for application of res ipsa loquitur; (2) the res ipsa loquitur instruction tendered by Plaintiff was incorrect; and (3) if failure to give the tendered instruction to the jury was error, the error was harmless. We affirm on the second ground; the instruction tendered by Plaintiff was not a proper res ipsa loquitur instruction and therefore the district court had no duty to give the instruction. We need not address Defendant’s other contentions.

I. Introduction

For the purpose of deciding this appeal we need provide only a brief summary of the evidence at trial. We view the evidence in the light most favorable to Plaintiff’s res ipsa loquitur theory, because the district court should reject an otherwise proper instruction only if there is insufficient evidence to support the factual predicate of the instruction. See Thompson Drilling v. Romig, 105 N.M. 701, 704-05, 736 P.2d 979, 982-83 (1987).

Defendant served as the anesthesiologist when a bilateral mastectomy was performed on Plaintiff. Sometime after the surgery (the parties disputed how soon after surgery) Plaintiff developed symptoms that were subsequently diagnosed as ulnar neuropathy, which caused the degeneration of the fourth and fifth fingers of her right hand. Plaintiff’s expert witness, Dr. Randall Waring, testified that the ulnar nerve, which passes by the elbow, can be injured during surgery if it is subjected to excessive stretching or compression that compromises the blood supply to the nerve. Therefore, he testified, an anesthesiologist should properly position and cushion the arm to avoid such pressure and should monitor the arm during surgery to be sure that proper positioning and cushioning is maintained. He described in detail the proper positioning and cushioning and the monitoring that should be conducted. (For ease of reference, we shall use the term “Waring protective procedures” to label the positioning, cushioning, and monitoring described by Dr. Waring.) He also testified that the injury to Plaintiff’s ulnar nerve must have occurred during the surgery and that such an injury to the nerve cannot occur during surgery unless the anesthesiologist fails to follow Waring protective procedures. Such a failure, in his view, constitutes negligent care. In response, Defendant put on evidence that he had properly positioned and cushioned Plaintiff’s arm during surgery, the injury could have occurred while Plaintiff was sedated by heavy pain medication after surgery, and injury to the ulnar nerve can appear after surgery despite the exercise of proper care by those performing the surgery.

Plaintiff tendered the following instruction:

In support of her claim that Dr. Broderick was negligent, Plaintiff relies in part upon the doctrine of “res ipsa loquitor [sic]” which is a Latin phrase and means “the thing speaks for itself”. To rely on this doctrine, Plaintiff has the burden of proving each of the following propositions:

1. That the injury to Plaintiff was proximately caused by inadequate protection of Plaintiff's extremities during anesthesia while her condition was under the exclusive control and management of Dr. Broderick.

2. That injury to Plaintiff was of the kind which does not ordinarily occur in the absence of negligence on the part of the person in control.

If you find that Plaintiff proved each of these propositions, then you may, but are not required to, infer that Dr. Broderick was negligent and that the injury or damage proximately resulted from such negligence.

If, on the other hand, you find that either one of these propositions has not been proved or, if you find, notwithstanding the proof of these propositions, that Dr. Broderick used ordinary care for the safety of others in his control and management of the Plaintiff, then the doctrine of res ipsa loquitor [sic] would not support a finding of negligence.

Most of the language of the instruction is taken from our uniform jury instruction on res ipsa loquitur, SCRA 1986, 13-1623.¹

The district court dismissed Plaintiff's res ipsa loquitur claim and rejected the tendered instruction on the ground that Plaintiff had failed to establish the requisite “exclusive control and management of Dr. Broderick.” The district court made the observation that the injury could have occurred after surgery as well as during surgery. The district court also noted that there was evidence that the injury suffered by Plaintiff does occur in the absence of negligence. See Schmidt v. St. Joseph’s Hosp., 105 N.M. 681, 684, 736 P.2d 135, 138 (Ct.App.1987) (in medical malpractice claim that ulnar neuropathy was caused by surgery, plaintiffs admission that the injury was “of a kind which can occur in the absence of negligence on the part of any person” is fatal to patient’s res ipsa loquitur claim). We need not rest affirmance on the grounds expressed by the district court, however, because we can affirm if the district court was correct for any reason. See Naranjo v. Paull, 111 N.M. 165, 170, 803 P.2d 254, 259 (Ct.App.1990).

As already noted, we base our affirmance on the conclusion that the tendered instruction is not a proper res ipsa instruction. See SCRA 1986, 1-051(1) (correct instruction must be tendered to preserve error in failure to instruct on a point of law). The analysis below will establish that the sole purpose of a res ipsa instruction is to inform the jury that it is permitted to draw a certain type of inference — an inference that might otherwise be considered improperly speculative. The tendered instruction, however, does not serve that function. Although it is labelled a res ipsa instruction and contains much language that belongs in a true res ipsa instruction, the tendered instruction at best states a pedestrian proposition for which no special instruction is necessary. It was therefore properly rejected.

II. Purpose of the Doctrine of Res Ipsa Loquitur

The doctrine of res ipsa loquitur has performed various functions. See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 40 (5th ed. 1984). In some jurisdictions it creates a presumption or shifts the burden of proof. See Restatement (Second) of Torts § 328D cmt. m (1965). It has also served as a way station in the development of the substantive law, such as the law of common carriers, see William L. Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 185-89 (1949), and the law of strict liability, see Louis L. Jaffe, Res Ipsa Loquitur Vindicated, 1 Buff.L.Rev. 1, 12-13 (1951) [hereinafter Jaffe] (commenting on Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944), in which the majority rested liability of the manufacturer of an exploding bottle on res ipsa loquitur, while Justice Traynor concurred on an absolute liability theory). In New Mexico, however, res ipsa loquitur is simply “a rule of evidence.” Strong v. Shaw, 96 N.M. 281, 283, 629 P.2d 784, 786 (Ct.App.1980). As stated by the reporter to the Restatement (Second) of Torts, “A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it.” Restatement (Second) of Torts § 328D cmt. b at 157. See Tipton v. Texaco, Inc., 103 N.M. 689, 697, 712 P.2d 1351, 1359 (1985).

If the doctrine of res ipsa loquitur accomplishes no more than to authorize the fact-finder to draw an appropriate inference from circumstantial evidence, one may question the utility of continuing to refer to the doctrine. In particular, why should the jury be instructed on the doctrine? As a general rule, when a party rests a claim on circumstantial evidence, the only instruction given is the uniform jury instruction on circumstantial evidence:

A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved.

SCRA 1986, 13-308. A party relying on circumstantial evidence ordinarily is not entitled to an instruction specifically describing the chain of inference upon which the party relies. For example, the uniform jury instructions say that failure of a party to produce evidence, SCRA 1986, 13-2104, failure of a party to testify, SCRA 1986, 13-2105, and a party’s flight from the scene of an accident, SCRA 1986, 13-2106, are not to be the subjects of jury instructions. Although instructions permitting the jury to draw inferences from such acts or omissions would correctly state the law, these are matters for argument to the jury by counsel. The approach taken in our uniform jury instructions is to keep the court out of disputes concerning the inferences that may be drawn from the evidence. Such matters are left to the skills of counsel. Why, then, should a party be entitled to a res ipsa instruction which serves only to spell out the desired chain of inference? We note that there is apparently only one reported New Mexico decision in which a judgment was reversed because of failure to give a res ipsa instruction. Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956) (chair collapsed when restaurant patron sat on it).

Perhaps the best explanation for having a res ipsa instruction is that it rebuts the view that the expressed inference is too speculative to be permissible. After all, one of our uniform jury instructions tells the jury: “Your verdict should not be based on speculation, guess or conjecture.” SCRA 1986, 13-2005. Professor Jaffe has suggested that the chief, perhaps sole, virtue of the doctrine of res ipsa loquitur is that, for sound policy reasons, it permits an inference that under customary standards would be considered too speculative to support a verdict. He observed:

Liability — in the traditional view — is not based on the “balance of probabilities” but on a finding of the fact. I am perfectly aware that abstract probability may play a role in finding a fact, but what is referred to in the traditional formula is the greater probability in the case at hand. The “probabilities” in the abstract or statistical sense is only a datum. The jury’s quest for the fact can only be undertaken if there is evidence in addition to that upon which the mere abstraction is based which will enable the jury to make a reasoned choice between the competing possibilities. The conditions for a finding are not satisfied merely by showing a greater statistical probability. If all that can be said is that there are 55 chances of negligence out of 100, that is not enough. There must be a rational, i.e., evidentiary basis on which the jury can choose the competing probabilities. If there is not, the finding will be based (in the words of the formula) on mere speculation and conjecture.

Jaffe, supra, at 3-4. He then contended:

The doctrine of res ipsa does rest on probability. It takes a case to the jury where the degree of probability is indeterminate and there is not sufficient evidence to apply it to the case at hand____ What justification can there be for putting to a jury a case in which a “rational” finding of liability cannot be made? The reason is two-fold. Our experience and understanding of such situations indicates a substantial, if indeterminate, probability of negligence. In short, there is a substantial probability that the plaintiff may have a cause of action. Now ordinarily that fact alone would not warrant a judgment against the defendant. But typically, if not invariably, in this class of case the defendant has greater access to the facts than the plaintiff. This is the significance of the usual requirement for res ipsa that the defendant be in control of the mischief-working instrumentality. Res ipsa rests on the notion that it is fair to treat the probability as the fact if the defendant has the power to rebut the inference. (Footnote omitted.)

Id. at 6. And he concluded:

There is in my opinion a legitimate place for a doctrine of res ipsa which operates in the absence of a less than adequate inference where the defendant is typically in control of the key facts. (Footnote omitted.)

Id. at 7.

We need not agree fully with Professor Jaffe concerning when it is appropriate to apply res ipsa loquitur. The purpose of quoting his analysis at length is just to point out that a res ipsa instruction can serve to give the jury a green light to cross what we shall call the “res ipsa bridge” from the predicate facts to what might otherwise be considered a too-speculative conclusion regarding the probable causes of the injury. We see no other purpose for the doctrine under New Mexico law.

In particular, we note that the doctrine serves no role in determining whether specific conduct is negligent. The jury determines whether specific conduct is beneath the standard of care by looking to its own view of what can be expected of a reasonable person or, in appropriate cases, by relying on an expert’s opinion regarding the standard of care for someone with special skills or responsibilities. The fact that conduct resulted in an accident is, of course, irrelevant to determining whether the conduct was negligent. When the doctrine of res ipsa loquitur permits an inference of negligence from the occurrence of an accident, it is not establishing a standard of care. It is simply saying that one can infer from the accident that the most likely causes are causes involving negligence of the defendant. The circumstantial inference is from the accident to the likelihood of the various possible causes. The jury then factors in its own view of which possible causes would involve negligence, a process that relies upon no inferences from the fact of the injury. Whether the jury draws the res ipsa inference of negligence is determined by the jury’s view of (1) which possible causes would involve negligence and (2) which possible causes are most likely.

III. Application to This Case

At trial, Plaintiff’s counsel asked what he called at the time “my res ipsa question”:

Q. * Assuming that it was proven to your satisfaction that the injury occurred during surgery, that the ulnar nerve injury occurred during surgery, is an ulnar nerve injury, in a healthy patient, the kind of injury that normally occurs in the absence of a failure of care by the anesthesiologist?

Dr. Waring responded:

A. I believe the answer is no * * *. My feeling is that if I exercised due diligence in positioning and padding the patient, that I will not have a nerve injury.

We assume, without deciding, that this testimony would support application of the doctrine of res ipsa loquitur to permit drawing an inference of the probable cause of the injury from the mere fact that the injury occurred. Dr. Waring’s answer tells the jury that it can cross the res ipsa bridge from (a) the occurrence of the injury during surgery to (b) the inference that the cause of the injury was negligent care, even in the absence of any direct evidence of what care was provided during surgery.

Dr. Waring’s testimony contained two components necessary for an inference of liability. First, he provided an expert opinion on causation — why the ulnar nerve injury occurred. He testified that the injury could occur during surgery only if Defendant did not follow the Waring protective procedures. Second, he provided an expert opinion on standard of care. He testified that failure to follow those procedures constitutes professional negligence. Thus, only with Dr. Waring’s assistance could the jury infer (1) the likely causes of the ulnar nerve injury and (2) that those causes involved negligence by Defendant. The first inference — which is derived from the occurrence of the injury during surgery — is a res ipsa-type inference. The testimony would permit the jury to cross a res ipsa bridge from the fact of the ulnar nerve injury to the inference of the likely causes of the injury. The second inference — regarding the standard of care — is not predicated on the occurrence of the injury and involves no circumstantial inference whatsoever.

The instruction submitted by Plaintiff, however, does not track Dr. Waring’s answer to the “res ipsa question.” The pertinent portion of the tendered instruction reads:

To rely on [the res ipsa] doctrine, Plaintiff has the burden of proving each of the following propositions:

1. That the injury to Plaintiff was proximately caused by inadequate protection of Plaintiffs extremities during anesthesia while her condition was under the exclusive control and management of Dr. Broderick.

2. That injury to Plaintiff was of the kind which does not ordinarily occur in the absence of negligence on the part of the person in control.

Although there may be some ambiguity in the meaning of “inadequate protection of Plaintiff’s extremities” in the first proposition, the most natural interpretation in the context of this trial derives from Dr. Waring’s testimony. He testified at length concerning the proper methods of protecting the extremities of an anesthetized patient by positioning, padding, and monitoring. He repeatedly made clear his opinion that Plaintiff's injury could have occurred during surgery only if there had been a failure to employ those methods. Consequently, “inadequate protection of Plaintiff’s extremities” would likely be construed by the jury to mean failure to employ the Waring protective procedures,² and the heart of the first proposition is simply that Plaintiff’s injury was caused by failure to follow those procedures. (For present purposes we ignore any concerns that may arise from the language in the first proposition that Plaintiff’s'“condition” was under the exclusive control and management of Defendant. Clearly the surgeon, as opposed to Defendant, had ultimate control over many aspects of Plaintiff’s “condition” during surgery. We will assume “condition” refers only to Plaintiff’s extremities, although the language is sufficiently indefinite that the instruction might be properly rejected on that ground alone.)

The core problem with the tendered instruction is that the first proposition begins after the jury has crossed the res ipsa bridge constructed by Dr. Waring. The proposition assumes that the jury has already inferred from the occurrence of the injury during anesthesia that the injury was caused by failure to follow Waring protective procedures. But once the jury finds that the injury was caused by failure to follow Waring protective procedures, the step from that finding to a determination of negligence does not involve any res ipsa inference. The only element needed to take that step is the finding that failure to follow Waring protective procedures constitutes negligence. That finding would not even be based on circumstantial evidence; it would be based on direct testimony by an expert witness, Dr. Waring, regarding the standard of care.

Not only is a res ipsa inference not necessary to travel from the first proposition to a determination of negligence, but also a res ipsa inference cannot provide the transportation because, as we have already pointed out, the doctrine of res ipsa loquitur cannot supply the element of the standard of care. One cannot infer the standard of care from the occurrence of an accident.

In sum, once the jury finds the first proposition (that the injury was caused by failure to employ Waring protective procedures), (1) the jury does not need a res ipsa inference to find liability, and (2) res ipsa loquitur cannot supply the link (standard of care) from the first proposition to liability. In other words, once the jury has found the first proposition, res ipsa loquitur has no role to play in the determination of liability. On this ground alone, the tendered instruction, which assumes that the jury has already found the first proposition, should have been rejected.

Proposition two in the tendered instruction — “[t]hat injury to Plaintiff was of the kind which does not ordinarily occur in the absence of negligence on the part of the person in control” — looks like res ipsa language but it cannot save the instruction. Unless it is read as superseding the first proposition (which would make the instruction hopelessly confusing), the second proposition must mean that the specific event described in the first proposition — “inadequate protection of Plaintiffs extremities during anesthesia” — does not ordinarily occur in the absence of negligence. That proposition, however, is in essence a statement of the standard of care, which is established by expert testimony, not through a res ipsa inference.

Thus, the tendered instruction does not inform the jury that it is permissible to cross the res ipsa bridge from the predicate (the occurrence of the ulnar nerve injury during surgery) to the conclusion (negligent care of Plaintiffs extremities). Construed to be meaningful, it says that the jury can hold Defendant liable if it finds that Plaintiffs extremities were not adequately protected during anesthesia, Defendant had exclusive control of Plaintiffs extremities, and it is negligence not to adequately protect the extremities during anesthesia. The instruction, as so construed, may accurately state the law, but it is not a res ipsa instruction. There was no need for an instruction to tell the jury that it could infer negligence from (1) the first proposition of the tendered instruction and (2) Dr. Waring’s testimony concerning the standard of care.

Nothing we say here is inconsistent with Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App.1970). That opinion did not discuss the instruction used at the trial of that case. It merely held that the doctrine of res ipsa loquitur would permit the jury to infer from (1) the fact that the wheel came off the truck, that (2) the defendant had been negligent in maintenance of the truck. Such an inference is a proper res ipsa inference. The analogue in our case to the res ipsa theory in Harless would be an inference from (1) the occurrence of Plaintiffs ulnar nerve injury during anesthesia, that (2) Defendant had been negligent in protecting Plaintiffs arm. That, however, was not the theory stated in Plaintiffs tendered instruction.

Having been rather harsh in our criticism of the tendered instruction, we should note that there are extenuating circumstances that may explain the errors. The errors undoubtedly were the result of efforts by Plaintiff’s counsel to force his res ipsa theory into the format of the uniform jury instruction on res ipsa loquitur. The uniform instruction, however, was not written with the present context in mind. Indeed, still open in New Mexico is the question of when, if ever, res ipsa is applicable in a medical malpractice case. Certainly, as pointed out in our first footnote, the language of the instruction stating that the injury “was of a kind which does not ordinarily occur in the absence of negligence” seems inappropriate in the medical malpractice context when experts recognize the occurrence of rare but unavoidable complications; the uniform instruction would need to be revamped if res ipsa doctrine were to be used in medical malpractice cases. Cf. SCRA 1986, 13-1118 (no instruction drafted for res ipsa loquitur in medical malpractice cases); 1 Cal.Jury Inst.Civ. 6.35, 6.36 (7th ed. 1986) (California res ipsa loquitur instructions for medical malpractice).

In its most recent decision on res ipsa loquitur, our supreme court stated that a res ipsa instruction should not have been given because the inferences arising from the doctrine, given the evidence of negligence, were “unnecessary crutches to reach the issues of negligence.” Tipton v. Texaco, Inc., 103 N.M. at 698, 712 P.2d at 1360. Here, perhaps a true res ipsa instruction would have been appropriate, but the instruction tendered by Plaintiff was, at best, an “unnecessary crutch” that set forth an obvious proposition for which no additional instruction was necessary. See Kirk Co. v. Ashcraft, 101 N.M. 462, 466, 684 P.2d 1127, 1131 (1984) (“It is not error to deny requested instructions when the instructions given adequately cover the law to be applied.”); State ex rel. State Highway Dep’t v. Strosnider, 106 N.M. 608, 612, 747 P.2d 254, 258 (Ct.App.1987) (“It is not error to refuse instructions that are incomplete, erroneous or repetitious.”).

Because the district court did not err in denying Plaintiff’s request to give the tendered instruction, we affirm the judgment below.

IT IS SO ORDERED.

BIVINS, Judge (concurs). PICKARD, Judge (dissents).

1 . Although this court is restricted in finding fault with uniform jury instructions, see State v. Jennings, 102 N.M. 89, 93, 691 P.2d 882, 886 (Ct.App.1984), we note the potentially misleading language: “does not ordinarily occur in the absence of negligence.” The language may improperly suggest that the jury can infer negligence if the injury rarely occurs when a person in the position of the defendant is careful. If the language is so interpreted, doctors could be found liable whenever a rare complication occurs. See Brannon v. Wood, 251 Or. 349, 444 P.2d 558, 562 (1968) (en banc) ("The test is not whether a particular injury rarely occurs, but rather, when it occurs, is it ordinarily the result of negligence.”); David Kaye, Probability Theory Meets Res Ipsa Loquitur, 77 Mich.L.Rev. 1456 (1979).

2 . Even if Plaintiff did not intend the words "inadequate protection" to have this meaning, it is proper to refuse the instruction if it could naturally be interpreted to have a meaning that would make the instruction improper.