Pacheco v. Ames

69 P.3d 324
CourtWashington Supreme Court
DecidedMay 22, 2003
Docket72554-3
StatusPublished
Cited by40 cases

This text of 69 P.3d 324 (Pacheco v. Ames) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacheco v. Ames, 69 P.3d 324 (Wash. 2003).

Opinion

69 P.3d 324 (2003)
149 Wash.2d 431

Keith A. PACHECO, Petitioner,
v.
John R. AMES, D.D.S., a sole proprietor, Respondent,
Thomas F. Whitfield, D.D.S., a sole proprietor, Defendant.

No. 72554-3.

Supreme Court of Washington, En Banc.

Argued February 27, 2003.
Decided May 22, 2003.

*325 Keith S. Douglass & Associates, Patrick Fannin, Spokane, for Petitioner.

Lawrence & Versnel, John Versnel, James Owen, Jr., Seattle, for Respondent.

Preston Thorgrimson et al., Martha Raymond, Shipla Bhatia, Seattle, Amicus Curiae on Behalf of Wa. Defense Trial Lawyers.

ALEXANDER, C.J.

A Spokane County Superior Court jury awarded Keith Pacheco damages for an injury he sustained while he was undergoing oral surgery performed by Dr. John Ames, D.D.S. The Court of Appeals reversed the judgment that was based on the jury verdict, concluding that the trial court improperly instructed the jury on the doctrine of res ipsa loquitur. Pacheco challenges that decision, asserting that he (1) satisfied the elements of the res ipsa loquitur doctrine, and (2) properly relied on the doctrine notwithstanding the fact that Dr. Ames offered testimony which explained how the injury could have occurred without negligence. We agree with Pacheco and reverse the Court of Appeals.

I.

In August 1996 Keith Pacheco was diagnosed by his dentist, Dr. Thomas Whitfield, D.D.S., with three impacted wisdom teeth. Whitfield referred Pacheco to an oral surgeon, Dr. John Ames, D.D.S, for extraction of the teeth. The teeth which were to be removed were the two upper wisdom teeth and the lower right wisdom tooth, designated numbers 1, 16, and 32, respectively. Before the surgery took place, Whitfield sent Ames *326 a Panorex x-ray[1] of Pacheco's teeth. In one corner of the x-ray there was a mark which Ames later stated he may have interpreted as an "LR" meaning "lower right." Partial Verbatim Report of Proceedings (RP) at 100.

Ames performed the oral surgery on September 23, 1996. During the surgery Pacheco was under general anesthetic and was, thus, unconscious. After Ames removed teeth numbers 1 and 16, he drilled in the back of Pacheco's mouth on the lower left side in the location where a tooth number 17 would lie. Pacheco did not have a tooth number 17. As a result of the "negative exploration" by Ames, the nerve in Pacheco's lower left jaw was injured. Clerk's Papers (CP) at 70. After realizing that there was no wisdom tooth 17, Dr. Ames removed tooth number 32 on the lower right side of Pacheco's mouth.

A few days later Pacheco returned to Dr. Ames's office for a follow-up appointment. Pacheco reported to Ames that his lower left jaw and lip were numb. Ames then advised Pacheco that he had drilled on the wrong side of his jaw, indicating that there was "a possibility that the x-ray might have been mislabeled, too," due to the mark on the x-ray. RP at 183.

Pacheco, who claimed that he had continued to experience numbness in an area of his jaw, chin, and lip, brought suit against Dr. Ames in Spokane County Superior Court.[2] At trial, the judge instructed the jury over Ames's objection, as follows:

When an agency or instrumentality which produces injury or damage is under the control of a defendant at the time of injury or damage to the plaintiff and the injury or damage which occurred would ordinarily not have resulted if the defendant had used ordinary care, then, in the absence of a satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent.

RP at 280.

The jury returned a verdict for Pacheco for $52,500. Thereafter the trial judge entered a judgment against Ames for the amount of the jury's verdict plus costs. Ames appealed to Division Three of the Court of Appeals, which reversed, concluding that the trial judge should not have given a res ipsa loquitur jury instruction because (1) the instrumentality causing the injury was not in the exclusive control of the defendant, and (2) the doctrine of res ipsa loquitur is not applicable "`when there is evidence that the action could occur without negligence on the defendant's part.'" Pacheco v. Ames, 110 Wash.App. 912, 918, 43 P.3d 535 (2002) (quoting Kimball v. Otis Elevator Co., 89 Wash. App. 169, 177, 947 P.2d 1275 (1997)).

We granted Pacheco's petition for review at 147 Wash.2d 1015, 56 P.3d 992 (2002). The Washington Defense Trial Lawyers Association was then permitted to submit an amicus curiae brief. Since the wording of the jury instruction was not challenged by Dr. Ames, the broad question before us is whether the trial court erred in presenting the jury with an instruction on the doctrine of res ipsa loquitur.

II.

The doctrine of res ipsa loquitur spares the plaintiff the requirement of proving specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent. In such cases the jury is permitted to infer negligence. Miller v. Kennedy, 91 Wash.2d 155, 159-60, 588 P.2d 734 (1978); Douglas v. Bussabarger, 73 Wash.2d 476, 482, 438 P.2d 829 (1968) (citing Pederson v. Dumouchel, 72 Wash.2d 73, 81, 431 P.2d 973 (1967)); Kemalyan v. Henderson, 45 Wash.2d 693, 702, 277 P.2d 372 (1954). The doctrine permits the inference of negligence on the basis that the evidence of the cause of the injury is practically accessible to the defendant but inaccessible to the injured person. Covey v. W. *327 Tank Lines, 36 Wash.2d 381, 390, 218 P.2d 322 (1950); see also Hogland v. Klein, 49 Wash.2d 216, 219, 298 P.2d 1099 (1956).

Ames argued successfully at the Court of Appeals that the doctrine of res ipsa loquitur was inapplicable in this case and that an instruction on the doctrine, therefore, was improperly submitted to the jury. Whether the doctrine of res ipsa loquitur is applicable to a particular case is a question of law. Zukowsky v. Brown, 79 Wash.2d 586, 592, 488 P.2d 269 (1971); Morner v. Union Pac. R.R. Co., 31 Wash.2d 282, 196 P.2d 744 (1948). We review questions of law de novo. Griffin v. West RS, Inc., 143 Wash.2d 81, 87, 18 P.3d 558 (2001).

We have repeatedly stated that res ipsa loquitur is applicable only when the evidence shows

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Cite This Page — Counsel Stack

Bluebook (online)
69 P.3d 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacheco-v-ames-wash-2003.