Becker v. Lake County Memorial Hosp. West

• Decision Date: 29 August 1990
• Docket Number: No. 89-433,89-433
• Parties: BECKER, Appellant, v. LAKE COUNTY MEMORIAL HOSPITAL WEST, Appellee.
• Court: Ohio Supreme Court

Page 202

53 Ohio St.3d 202

560 N.E.2d 165

BECKER, Appellant, v. LAKE COUNTY MEMORIAL HOSPITAL WEST, Appellee.

No. 89-433.

Supreme Court of Ohio.

Submitted March 7, 1990.

Decided Aug. 29, 1990.

Spero & Rosenfield Co., L.P.A., and Keith E. Spero, Cleveland, for appellant.

Reminger & Reminger Co., L.P.A., and Nicholas D. Satullo, Cleveland, for appellee.

JAMES A. BROGAN, Judge.

For her proposition of law, appellant asserts that res ipsa loquitur may apply where two persons, acting in concert, are jointly or concurrently in exclusive control of the instrumentality that caused the injury. In Ohio, the rule of res ipsa loquitur is not a rule of substantive law but is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where " * * * the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant[,] and that * * * the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed. * * * " Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67, 52 O.O.2d 366, 367, 262 N.E.2d 703, 705. See, also, Glowacki v. North Western Ohio Ry. & Power Co. (1927), 116 Ohio St. 451, 157 N.E. 21, paragraph one of the syllabus. The weight of the inference as well as the weight of the explanation offered to meet the inference is for the determination of the jury in a jury trial. Id. at paragraph three of the syllabus. " * * * Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question of law to be determined initially by the trial court, subject to review upon appeal. It is prejudicial error for the trial court to direct a verdict for defendant at the close of plaintiff's evidence where the evidence presented warrants the application of the rule. * * * " Hake, supra, 23 Ohio St.2d at 67, 52 O.O.2d at 367, 262 N.E.2d at 705; Hiell v. Golco Oil Co. (1940), 137 Ohio St. 180, 17 O.O. 544, 28 N.E.2d 561.

Early cases refused to apply res ipsa loquitur to multiple defendants because of the strict interpretation of the exclusive-control requirement. This literal application of the word "exclusive" led a Rhode Island court to deny recovery to a customer injured in a store when a chair collapsed because, at the time of the injury, the customer, not the store, had "exclusive control" of the chair. Kilgore v. Shepard Co. (1932), 52 R.I. 151, 158 A. 720.

Several courts began to accept the concept of "concurrent control." This concept was first recognized in Smith v. Claude Neon Lights, Inc. (N.J.App.1933), 164 A. 423, where a New Jersey court held that res ipsa loquitur could be maintained against both a landowner and a sign company when a small sign advertising the company fell off the landowner's larger sign and injured a passerby. The court reasoned that they shared control and duty of both parties to the plaintiff was sufficient to invoke the doctrine.

"The fallacy of the 'exclusive control' test is seen in many situations where the doctrine is unhesitatingly applied despite absence of 'control.' Where for instance the defendant's duty of care with respect to the injuring agency is (as to the plaintiff) non-delegable, the fact that control may have been in an independent contractor will not preclude the application of the doctrine." 4 Harper, James & Gray, The Law of Torts (2 Ed.1986) 47, Section 19.7. See, also, id. at fn. 6, and cases cited therein.

In Shields v. King (1973), 40 Ohio App.2d 77, 69 O.O.2d 57, 317 N.E.2d 922, the Hamilton County Court of Appeals held that "[t]he doctrine of res ipsa loquitur is not restricted to factual situations involving a single defendant, but may be applied to factual situations involving two or more defendants who, as a result of concerted actions, were in collective and concurrent control of the only instrumentalities which, the evidence establishes, caused injury." Id. at paragraph one of the syllabus.

In Ybarra v. Spangard (1944), 25 Cal.2d 486, 154 P.2d 687, the Supreme Court of California held that where the patient submitted himself to the care and custody of doctors and nurses for an appendectomy, and while under anesthetic the patient received serious injuries to his arm and shoulder, the patient was entitled to the aid of the doctrine of res ipsa loquitur, and was not required to show which doctor or nurse was responsible for his injury.

Chief Justice Gibson summarized the arguments of the various defendants and the court's ultimate holding:

"The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant's control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.

"We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Drs. Smith, Spangard and Tilley were physicians or surgeons commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard. * * *

" * * *

"We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct." (Emphasis added.) Id., 154 P.2d at 690-691.

In Kolakowski v. Voris (1981), 83 Ill.2d 388, 47 Ill.Dec. 392, 415 N.E.2d 397, the Supreme Court of Illinois held that when the patient submitted himself to the care of a hospital and its staff and was rendered unconscious for the purpose of surgery performed by independent contracting surgeons, the control necessary under res ipsa loquitur was met, and the burden shifted to the hospital to dispel the inference that it exercised control warranting the application of the doctrine. Justice Moran noted, 47 Ill.Dec. at 396, 415 N.E.2d at 401:

"In the present case, the plaintiff, at the time of the alleged injury, was placed in the care and custody of the named defendants. Since plaintiff was under a general anesthetic during surgery, he was unable to determine the cause of his injuries; the cause was within the exclusive knowledge of the defendants. It is under these circumstances that a plaintiff's only recourse is to rely on the doctrine of res ipsa loquitur. Under the theory advanced by defendant, whenever a doctor acting in the capacity of an independent contractor participates in surgery in defendant's hospital, the element of exclusive control by the hospital ceases. We believe this approach is manifestly unfair because the physicians and hospital, at the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment." See, also, Fogal v. Genesee Hosp. (1973), 41 App.Div.2d 468, 344 N.Y.S.2d 552.

If the plaintiff has made out a res ipsa loquitur case, he succeeds in avoiding a dismissal or a directed verdict at the close of his own case. Prosser, The Procedural Effect of Res Ipsa Loquitur (1936), 20 Minn.L.Rev. 241, 243-244.

In Fink v. New York Central RR. Co. (1944), 144 Ohio St. 1, 28 O.O. 550, 56 N.E.2d 456, this court held that "[t]he trial court, in a jury trial, in a case which calls for the application of the rule of res ipsa loquitur, is without authority to declare, as a matter of law, that the inference of negligence which the jury is permitted to draw, has been rebutted or destroyed by an explanation of the circumstances offered by the defendant, and such action on the part of the trial court is an invasion of the province of the jury." Id. at paragraph three of the syllabus.

In the case before us, Lenkauskas testified as upon cross-examination that the patient's arms are usually restrained for septoplasty operations by a "lift sheet" technique and he assumed that the nurses had done so in regard to Becker. He admitted that this precaution was usually employed at Lake County Memorial Hospital West and the majority of hospitals. He stated he did not notice that Becker had not been restrained prior to the surgery. He stated that if a patient objects to his arms being restrained by the lift sheet and the patient is otherwise alert and responsive, he usually requests the nurses to loosen the sheet. He stated the usual practice was to restrain the patient's arms unless he tells the nurses otherwise. He testified he retains the discretion to order the restraint removed.

Lenkauskas explained that he had been...