Gilbert, C. J.,
delivered the opinion of the Court.
This appeal seeks to make
res ipsa loquitur
viable in an alleged medical malpractice case. We are asked by the infant appellant, Lisa Marie Stevens, to hold that
res ipsa loquitur
has a place in medical malpractice claims, notwithstanding prior decisions by the Court of Appeals and this Court to the contrary.
—THE FACTS—
The backdrop for this appeal, as disclosed by the record, is that Lisa, then age six, was admitted to the Union Memorial Hospital in Baltimore City on November 19, 1975, for the surgical excision of her tonsils and adenoids. Lisa’s surgeon was Dr. Jerrie Cherry. Lisa’s mother accompanied the child to the doors of the operating room and, according to the mother, Lisa had no marks or scars on her face at that time. The anesthesiologist, Dr. Karim F. Rashad, did not recall seeing any marks on Lisa’s face prior to the operation. The only other persons present in the operating room in addition to Doctors Cherry and Rashad were a scrub technician and a circulating nurse.
A mask was placed over Lisa’s mouth, and the anesthesia was administered. Before the actual surgery, the mask was removed, and no marks were observed by Dr. Rashad on the child’s face. Upon removal of a mouth gag that had been employed to facilitate access to Lisa’s throat, she was discovered to have two blisters on her face. The blebs ruptured. Upon healing, noticeable scars remained. The evidence showed that an electrocauterizer was used by Dr.
Cherry during the operation.
The scars were claimed in the suit to be a source of anxiety and to cause emotional suffering to the young girl.
Lisa’s attorneys were cognizant to the fact that the child was unconscious during the operation and, thus, unable to relate the events that produced the blisters which resulted in the scarring. Moreover, they did not produce an expert witness who might have opined that the scars were a direct result of negligent treatment.
On oral argument, we were advised that the two nurses, who were present at the time of the operation, had not been deposed by the appellants. Moreover, neither nurse was called as a witness in the case.
We think a clear inference may be drawn from the manner in which the case was presented that the appellants attempted to mold the facts so as to fit within the framework of the doctrine of
res ipsa loquitur.
There is an equally pellucid inference that the appellants’ counsel sought to arm themselves for a frontal attack on the Maryland appellate precedent proscribing
res ipsa loquitur
in medical malpractice suits.
The case was presented to the trial judge and jury on the basis of the testimony of Lisa’s mother, excerpts from the depositions of Doctors Cherry and Rashad, and the in-court testimony of Lisa, herself.
At the conclusion of Lisa’s case, the appellees, Union Memorial, Dr. Cherry, and Dr. Rashad, all moved for a directed verdict on the ground that Lisa had not proven prima facie negligence on their part, and that
res ipsa
loquitur
did not apply to a medical malpractice claim. In granting the motions, the trial judge commented:
"Everything that Plaintiffs Counsel argues here, very forcefully in my judgment, sets forth what is a substantial difference of opinion that other jurisdictions have with Maryland over the applicability of the doctrine of Res ipsa in situations such as we find here, but at this date, as far as I can determine from my study of the subject, it is not the law of Maryland.”
—RES IPSA LOQUITUR—
The doctrine of
res ipsa loquitur
is actually a rule of evidence invented by the English courts
in order to permit the plaintiff in a negligence action to establish a prima facie case of negligence when he could not otherwise satisfy the traditional requirements of negligence. The rule thereby avoided a directed verdict in favor of the defendant and enabled the case to go to the jury for its deliberation.
Res ipsa loquitur
was originally associated with falling objects,
and is grounded on the inference that the injury would not have occurred absent someone’s negligence. The justification for this special rule of evidence is "found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident.”
Potts v. Armour & Co.,
183 Md. 483, 488, 39 A.2d 552, 555 (1944). The rule is not applicable when it can be inferred from ordinary experience that the accident might have happened without any fault of the defendant.
Id.
Under the law of this State, the following prerequisites must be fulfilled before
res ipsa loquitur
may be invoked:
1) The injury is of a nature that would not ordinarily occur in the absence of negligence;
2) The defendant had exclusive control of the instrument which caused the injury; and
3) The plaintiff did not contribute to the injury.
See Blankenship v. Wagner,
261 Md. 37, 273 A.2d 412 (1971);
Chesapeake & Potomac Telephone Co. v. Hicks,
25 Md. App. 503, 337 A.2d 744 (1975);
United States
v.
Chesapeake Delaware Shipyard, Inc.,
369 F. Supp. 714 (D.C. Md. 1974).
Despite the efforts of the appellants to assail the ramparts of
Sard v. Hardy, supra,
and others, note 2,
supra,
their assault must be turned back because this is not a
bona fíde
case of
res ipsa loquitur.
Indeed, it is simply a case of alleged, but unproven, medical malpractice clad in the costume of
res ipsa loquitur.
We reach that conclusion because of the appellants’ failure to meet the three criteria needed to invoke the doctrine upon which they seek to rely. If we assume
arguendo
that the appellants have satisfied the first and third prongs of the three-tined test set out above, they, nevertheless, have not sated the second prong. There is no proof that the appellees had
exclusive
control of the instrument which caused the injury. Although neither of the two nurses was joined as defendants in the suit, or deposed, or served written interrogatories, either or both of the nurses
may
have been the person or persons responsible for the injury to Lisa. We cannot assume that of the four persons present in the operating room that only one or two of them or the hospital itself is the responsible party or parties.
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Gilbert, C. J.,
delivered the opinion of the Court.
This appeal seeks to make
res ipsa loquitur
viable in an alleged medical malpractice case. We are asked by the infant appellant, Lisa Marie Stevens, to hold that
res ipsa loquitur
has a place in medical malpractice claims, notwithstanding prior decisions by the Court of Appeals and this Court to the contrary.
—THE FACTS—
The backdrop for this appeal, as disclosed by the record, is that Lisa, then age six, was admitted to the Union Memorial Hospital in Baltimore City on November 19, 1975, for the surgical excision of her tonsils and adenoids. Lisa’s surgeon was Dr. Jerrie Cherry. Lisa’s mother accompanied the child to the doors of the operating room and, according to the mother, Lisa had no marks or scars on her face at that time. The anesthesiologist, Dr. Karim F. Rashad, did not recall seeing any marks on Lisa’s face prior to the operation. The only other persons present in the operating room in addition to Doctors Cherry and Rashad were a scrub technician and a circulating nurse.
A mask was placed over Lisa’s mouth, and the anesthesia was administered. Before the actual surgery, the mask was removed, and no marks were observed by Dr. Rashad on the child’s face. Upon removal of a mouth gag that had been employed to facilitate access to Lisa’s throat, she was discovered to have two blisters on her face. The blebs ruptured. Upon healing, noticeable scars remained. The evidence showed that an electrocauterizer was used by Dr.
Cherry during the operation.
The scars were claimed in the suit to be a source of anxiety and to cause emotional suffering to the young girl.
Lisa’s attorneys were cognizant to the fact that the child was unconscious during the operation and, thus, unable to relate the events that produced the blisters which resulted in the scarring. Moreover, they did not produce an expert witness who might have opined that the scars were a direct result of negligent treatment.
On oral argument, we were advised that the two nurses, who were present at the time of the operation, had not been deposed by the appellants. Moreover, neither nurse was called as a witness in the case.
We think a clear inference may be drawn from the manner in which the case was presented that the appellants attempted to mold the facts so as to fit within the framework of the doctrine of
res ipsa loquitur.
There is an equally pellucid inference that the appellants’ counsel sought to arm themselves for a frontal attack on the Maryland appellate precedent proscribing
res ipsa loquitur
in medical malpractice suits.
The case was presented to the trial judge and jury on the basis of the testimony of Lisa’s mother, excerpts from the depositions of Doctors Cherry and Rashad, and the in-court testimony of Lisa, herself.
At the conclusion of Lisa’s case, the appellees, Union Memorial, Dr. Cherry, and Dr. Rashad, all moved for a directed verdict on the ground that Lisa had not proven prima facie negligence on their part, and that
res ipsa
loquitur
did not apply to a medical malpractice claim. In granting the motions, the trial judge commented:
"Everything that Plaintiffs Counsel argues here, very forcefully in my judgment, sets forth what is a substantial difference of opinion that other jurisdictions have with Maryland over the applicability of the doctrine of Res ipsa in situations such as we find here, but at this date, as far as I can determine from my study of the subject, it is not the law of Maryland.”
—RES IPSA LOQUITUR—
The doctrine of
res ipsa loquitur
is actually a rule of evidence invented by the English courts
in order to permit the plaintiff in a negligence action to establish a prima facie case of negligence when he could not otherwise satisfy the traditional requirements of negligence. The rule thereby avoided a directed verdict in favor of the defendant and enabled the case to go to the jury for its deliberation.
Res ipsa loquitur
was originally associated with falling objects,
and is grounded on the inference that the injury would not have occurred absent someone’s negligence. The justification for this special rule of evidence is "found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident.”
Potts v. Armour & Co.,
183 Md. 483, 488, 39 A.2d 552, 555 (1944). The rule is not applicable when it can be inferred from ordinary experience that the accident might have happened without any fault of the defendant.
Id.
Under the law of this State, the following prerequisites must be fulfilled before
res ipsa loquitur
may be invoked:
1) The injury is of a nature that would not ordinarily occur in the absence of negligence;
2) The defendant had exclusive control of the instrument which caused the injury; and
3) The plaintiff did not contribute to the injury.
See Blankenship v. Wagner,
261 Md. 37, 273 A.2d 412 (1971);
Chesapeake & Potomac Telephone Co. v. Hicks,
25 Md. App. 503, 337 A.2d 744 (1975);
United States
v.
Chesapeake Delaware Shipyard, Inc.,
369 F. Supp. 714 (D.C. Md. 1974).
Despite the efforts of the appellants to assail the ramparts of
Sard v. Hardy, supra,
and others, note 2,
supra,
their assault must be turned back because this is not a
bona fíde
case of
res ipsa loquitur.
Indeed, it is simply a case of alleged, but unproven, medical malpractice clad in the costume of
res ipsa loquitur.
We reach that conclusion because of the appellants’ failure to meet the three criteria needed to invoke the doctrine upon which they seek to rely. If we assume
arguendo
that the appellants have satisfied the first and third prongs of the three-tined test set out above, they, nevertheless, have not sated the second prong. There is no proof that the appellees had
exclusive
control of the instrument which caused the injury. Although neither of the two nurses was joined as defendants in the suit, or deposed, or served written interrogatories, either or both of the nurses
may
have been the person or persons responsible for the injury to Lisa. We cannot assume that of the four persons present in the operating room that only one or two of them or the hospital itself is the responsible party or parties.
Appellants may not, as they have tried to do in this case, exclude possible parties defendant, and selectively tailor their discovery in order to invoke
res ipsa loquitur.
The appellants, had they deposed the two nurses, may have discovered the "true cause of the accident.”
Furthermore,
Potts
flatly holds that the rule of
res ipsa loquitur
is not available to a plaintiff when "it can be
inferred from ordinary experience that the accident might have happened without the fault of the defendant.”
Id.
at 488, 39 A.2d at 555.
The facts of the instant case give rise to a rational inference, founded on ordinary experience, that when four persons other than the victim are in attendance at the happening of an accident, any one or more of the four may have caused the accident.
We think the appellants are in the position of proving too much and too little: too much for the application of
res ipsa loquitur
to the facts,
and too little for a finding of ordinary negligence.
Judgment affirmed.
Costs to be paid by appellants.