Mireles v. Broderick

• Citation: 117 N.M. 445,872 P.2d 863,1994 NMSC 41
• Decision Date: 04 April 1994
• Docket Number: No. 20375,20375
• Parties: Mary Ann MIRELES, Plaintiff-Petitioner, v. Thomas BRODERICK, Defendant-Respondent.
• Court: Supreme Court of New Mexico

Page 863

872 P.2d 863

117 N.M. 445

Mary Ann MIRELES, Plaintiff-Petitioner, v. Thomas BRODERICK, Defendant-Respondent.

No. 20375.

Supreme Court of New Mexico.

April 4, 1994.

[117 N.M. 446] William S. Ferguson, Albuquerque, for plaintiff-petitioner.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Bruce D. Hall, Albuquerque, for defendant-respondent.

OPINION

RANSOM, Justice.

On petition of Mary Ann Mireles, we issued a writ of certiorari to the Court of Appeals to decide (1) whether the doctrine of res ipsa loquitur is restricted to events from which the jury, without assistance of expert testimony, could infer negligence from common knowledge that such events do not otherwise ordinarily occur; and (2) what responsibility the trial court has in response to a request for a jury instruction on a theory to which a party is entitled but which has been requested in language that is unsatisfactory to the court. This is a medical malpractice action in which Mireles has sued Dr. Thomas Broderick, her anesthesiologist. Based on expert testimony that the anesthesiologist positions and cushions the patient's arm to avoid nerve compression injury during surgery, Mireles requested the trial court to describe the injury-causing occurrence that was within the exclusive control or management of the anesthesiologist as "inadequate protection of plaintiff's extremities during anesthesia." Because of alleged error in the statement of this element of the doctrine, the Court of Appeals affirmed the trial court's refusal to instruct the jury on res ipsa loquitur as requested by Mireles. Mireles v. Broderick, 113 N.M. 459, 827 P.2d 847 (Ct.App.1992). We reverse and remand for a new trial. In so doing, we address additional issues raised by Dr. Broderick--the propriety of instructing the jury on res ipsa loquitur in medical malpractice actions generally and in this case in particular, and the necessity of establishing exclusive control in order to submit the instruction to the jury.

Facts and proceedings. Shortly after undergoing a bilateral mastectomy, Mireles experienced numbness in her right arm. The numbness subsequently was diagnosed as ulnar neuropathy, a condition marked in her case by degenerative nerve damage to the fourth and fifth fingers of her right hand. Mireles brought this action against Dr. Broderick, alleging separate counts of medical negligence, battery, and res ipsa loquitur. The case went to trial before a jury on the negligence and res ipsa loquitur theories. Mireles's expert witness, Dr. Randall Waring, testified that the ulnar nerve can be injured if it is compressed. He testified he believed that Mireles's ulnar injury, "in all probability, occurred while she was under anesthesia for [the] surgery" and that such injury was totally preventable by proper care. He testified that the ultimate responsibility for protection against injury lies with the anesthesiologist, who should properly position and cushion the arm to avoid compression and should monitor the arm during surgery to be sure that proper positioning and cushioning are maintained while the patient is unconscious. At the close of Mireles's case, the presiding judge stated that he was not going to allow Mireles to go forward with the case on the theory of res ipsa loquitur "because it doesn't come under the exclusivity rule." The court later refused Mireles's requested instruction on res ipsa loquitur.

Focusing on the content of the requested instruction, the Court of Appeals affirmed the trial court. Citing SCRA 1986, 1-051(I) (Repl.Pamp.1992) (stating that "a correct instruction must be tendered" to preserve error in instructions), the Court based its affirmance on the conclusion that the tendered instruction was "not a proper res ipsa instruction." Mireles, 113 N.M. at 461, 827 P.2d at 849. The Court also advanced a broader rationale, namely that there could be no error in refusing the requested res ipsa loquitur instruction because, as framed by Mireles, the instruction was "at best, an 'unnecessary crutch' that set forth an obvious proposition for which no additional instruction was necessary." Mireles, 113 N.M. at 465, 827 P.2d at 853.

Propriety of res ipsa loquitur instruction in medical malpractice actions. In contending that res ipsa loquitur is inapplicable to this medical malpractice action as a matter of law, Dr. Broderick advances two arguments. First, he contends that res ipsa loquitur is available only when an inference of negligence is articulable from the common knowledge and experience of the lay person. The major thrust of Dr. Broderick's argument is that the common-knowledge requirement is the "historical premise" of res ipsa loquitur, and to permit expert testimony to establish the inference of negligence would constitute an "end run" around this premise. According to Dr. Broderick, medical malpractice plaintiffs should be required to base their cases either on expert testimony or "common-knowledge" res ipsa loquitur, but not both. Second, according to Dr. Broderick, when a plaintiff has attempted to explain the exact medical cause of the injury, she should not have the benefit of the res ipsa loquitur instruction.

--Expert testimony may support an inference of negligence. Dr. Broderick argues that, because of the rule that negligence of medical providers generally must be proved by expert testimony, res ipsa loquitur is limited in malpractice cases to the common-knowledge exception alluded to by this Court in Cervantes v. Forbis, 73 N.M. 445, 448, 389 P.2d 210, 213 (1964). He argues that only when the inference of negligence is within the common reservoir of knowledge of the jurors may the jury be charged on the res ipsa loquitur doctrine. In Cervantes, we stated that without expert witness testimony demonstrating departure from medical standards "there can be no issue of fact as to the negligence or proximate cause unless the case is one where exceptional circumstances within common experience or knowledge of the layman are present, or one where the res ipsa loquitur rule is applicable." Id. at 448-49, 389 P.2d at 213 (emphasis added).

By focusing on the rule of Cervantes, Dr. Broderick's argument loses sight of the dispositive principle at issue in the application of res ipsa loquitur. Res ipsa loquitur describes a set of conditions to be met before an inference of negligence may be drawn. See Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 528, 25 P.2d 197, 199 (1933) (quoting from Plumb v. Richmond Light & R. Co., 233 N.Y. 285, 135 N.E. 504 (1922), that res ipsa loquitur is a "rule that the fact of the occurrence of an injury and the surrounding circumstances [of the defendant's control and management] may permit an inference of culpability on the part of the defendant, make out plaintiff's prima facie case, and present a question of fact for the defendant to meet with an explanation"). As such, the central issue is not whether common knowledge alone is sufficient to establish an inference of negligence. Rather, the issue is whether there is a factual predicate sufficient to support an inference that the injury was caused by the failure of the party in control to exercise due care. The requisite probability of negligence may exist independently of the common knowledge of the jurors. The common-knowledge exception to the expert testimony rule may inform but does not delimit the application of res ipsa loquitur.

We join the growing consensus of courts from other jurisdictions and adopt scholarly commentary to hold that the foundation for an inference of negligence may be formed by expert testimony that a certain occurrence indicates the probability of negligence. See, e.g., Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 923 (1955) (in bank); Walker v. Rumer, 72 Ill.2d 495, 21 Ill.Dec. 362, 364, 381 N.E.2d 689, 691 (1978); Perin v. Hayne, 210 N.W.2d 609, 614-15 (Iowa 1973); Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157-58 (1981); Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234, 243-44 (1965) (in banc); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134, 1138 (1981); Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 492-93 (S.D.1982); Horner v. Northern Pac. Beneficial Ass'n Hosps., Inc., 62 Wash.2d 351, 382 P.2d 518, 524 (1963); Fehrman v. Smirl, 20 Wis.2d 1, 121 N.W.2d 255, 268 (1963); Restatement (Second) Torts Sec. 328D cmt. d (1965) ("[E]xpert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference [of negligence]."); W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 39, at 247 (5th ed. 1984) (stating that when a basis of common knowledge is lacking, expert testimony may provide a sufficient foundation for an inference of negligence); Thomas A. Eaton, Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment, 17 Ga.L.Rev 33, 52-56 (1982) (recommending that Georgia permit inference of negligence in medical malpractice actions to be based on expert testimony).

Contrary to Dr. Broderick's contentions, we are aware of no reported New Mexico opinions either expressly or impliedly prohibiting the founding of a res ipsa loquitur inference on expert testimony in medical malpractice actions or, for that matter, in any tort action. Dr. Broderick suggests that this Court in Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964), expressed reluctance to permit an expert-based res ipsa loquitur inference. To the contrary, Buchanan appears to encourage the practice. There, the plaintiff sued his doctor for injuries alleged to have resulted from the negligent administration of a hypodermic injection. On appeal from an adverse summary judgment, the plaintiff contended that application of the doctrine of res ipsa loquitur presented a factual issue of negligence sufficient to avoid summary judgment. Id. at 424, 394 P.2d at 270. Affirming, this Court noted that the plaintiff's failure to present evidence "by deposition or...