Morgan v. Children's Hosp., 84-756

• Decision Date: 17 July 1985
• Docket Number: No. 84-756,84-756
• Citation: 480 N.E.2d 464,18 Ohio St.3d 185,18 OBR 253
• Parties: , 49 A.L.R.4th 51, 18 O.B.R. 253 MORGAN et al., Appellants, v. CHILDREN'S HOSPITAL; Garvin, Appellee.
• Court: Ohio Supreme Court

Page 185

18 Ohio St.3d 185

480 N.E.2d 464, 49 A.L.R.4th 51, 18 O.B.R. 253

MORGAN et al., Appellants, v. CHILDREN'S HOSPITAL; Garvin, Appellee.

No. 84-756.

Supreme Court of Ohio.

July 17, 1985.

Syllabus by the Court

The use of expert testimony in a medical malpractice case to establish 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 does not disqualify such a case for application of the doctrine of res ipsa loquitur.

On August 3, 1978, plaintiff-appellant Jerome Morgan (hereinafter "appellant") underwent a surgical procedure known as a thymectomy, the removal of the thymus gland, as treatment for myasthenia gravis, a rare muscle disease. The thymus gland is located under the sternum. The operation involved the opening of appellant's chest and splitting the sternum to reach the gland.

Appellant's general anesthesia was administered by defendant-appellee, Dr. John Garvin, and his agent, Jean Marshall, a certified registered nurse anesthetist. The anesthesia was introduced at 12:30 p.m. and the chart Marshall kept during the operation shows that appellant's vital signs remained normal until approximately 1:45 p.m. At 1:45, appellant's rate of respiration increased from twenty breaths per minute to forty breaths per minute. Marshall administered succinylcholine to paralyze appellant's muscles and demerol for the pain. These drugs prevented appellant from breathing on his own. The drugs were administered because the increase in the respiration rate showed that pain was penetrating the anesthetized level of the patient. With appellant's muscles paralyzed, Marshall was required to breathe for appellant by squeezing a bag which forced oxygen and anesthetic into his lungs.

At 2:40 p.m., as Dr. Catalano, the surgical resident, was closing appellant's chest, bradycardia, a slowing of appellant's heart rate, occurred. There is conflicting testimony in the record between Dr. Catalano and Marshall as to exactly when the bradycardia was noticed. However, after such condition was noticed Dr. Catalano administered closed cardiac massage, followed by open cardiac massage, while an anesthesiologist, one of appellee's associates, and the nurse anesthetist administered drugs to speed the heart rate and stabilize the heart muscle.

Dr. Catalano again closed the chest and appellant was taken to the intensive care unit at approximately 3:20 p.m. While in the intensive care unit appellant suffered grand mal seizures. Appellant never awoke from the anesthesia and, at the time of trial, remained in a comatose, vegetative state from which he is never expected to emerge. At the time of his operation appellant was twelve years old.

The expert witnesses agree that the appellant suffered diffused or global brain damage as a result of oxygen deprivation (hypoxic encephalopathy). However, appellants' expert witnesses asserted the oxygen deprivation resulted from the failure of Marshall to adequately ventilate appellant, whereas appellee's expert witnesses explained the damage was caused by an air emboli or bubbles of air, which blocked the blood vessels carrying oxygen to the brain.

At trial, the appellants, Jerome and his mother, Geneva Morgan, requested an instruction to the jury on res ipsa loquitur. The trial court refused to give this instruction.

After presentation of all the evidence the jury returned a verdict for the appellee. Appellants appealed to the court of appeals which affirmed the trial court's decision rejecting the requested jury instruction on res ipsa loquitur. The appellate court reasoned that when expert testimony is required, as in this case, the jury may not be instructed on res ipsa loquitur since the lay person cannot "as a matter of common knowledge" tell that the injury is one which does not normally occur if due care had been exercised.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Wolske & Blue, Walter J. Wolske, Jr., and Jason A. Blue, Columbus, for appellants.

Nurenberg, Plevin, Jacobsen, Heller & McCarthy Co., L.P.A., William A. Davis and Marshall I. Nurenberg, Cleveland, for appellee.

CLIFFORD F. BROWN, Justice.

It must be noted at the outset of this opinion that the doctrine of res ipsa loquitur is only a rule of evidence which allows the trier of fact to draw an inference of negligence from the facts presented. The trier of facts is permitted, but not compelled, to find negligence. ¹ This rule is set forth in Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, at 169-170, 406 N.E.2d 1385 :

"The doctrine of res ipsa loquitur is not a substantive rule of law furnishing an independent ground for recovery; rather, it is an evidentiary rule which permits, but does not require, the jury to draw an inference of negligence when the logical premises for the inference are demonstrated. * * *

"The doctrine of res ipsa loquitur does not alter the nature of the plaintiff's claim in a negligence action; it is merely a method of proving the defendant's negligence through the use of circumstantial evidence. The only way in which a defendant might conceivably be prejudiced by the invocation of the doctrine is where only a specific allegation of negligence is pleaded, and the inference to be drawn from the plaintiff's proof is inconsistent with the theory of negligence set forth in the complaint. * * * "

The two prerequisites which must be met to warrant an instruction to the jury on res ipsa loquitur, which have been set forth by this court in Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703 , are as follows:

"To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) that 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 (2) 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."

In the present case appellants assert that the instrumentality causing the injury to Jerome Morgan was the failure of appellee's agent to properly ventilate the appellant during the operation. This alleged failure caused oxygen deprivation to the brain, thereby resulting in the injuries which appellant suffered causing his present vegetative state. The appellate court in this case concluded that even if the appellants are presumed to have met the first prerequisite for the instruction of res ipsa loquitur, that they are unable to meet the second prerequisite because it is essential in a medical malpractice case that expert testimony be used to establish the standard of ordinary care. Therefore, the court reasoned that the doctrine of res ipsa loquitur cannot be applied in medical malpractice cases because a lay person cannot say "as a matter of common knowledge" that the injury is one which would not have ordinarily occurred in the course of events had ordinary care been observed.

The appellate court, relying on Yandrich v. Blair (1979), 65 Ohio App.2d 65, 415 N.E.2d 996 , sets forth a rigid rule that when expert testimony is necessary to explain that an injury is the result of a lack of due care, then the injury does not speak for itself. Such a rigid rule excludes the doctrine of res ipsa loquitur from nearly all medical malpractice cases.

The reasoning of the lower court concerning res ipsa loquitur in medical malpractice cases is not compelling. Numerous other jurisdictions when faced with this same question have found that expert testimony can be used in medical malpractice cases to establish 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, thereby allowing an instruction on res ipsa loquitur to be given to the jury. ² This court enunciated in Oberlin v. Friedman (1965), 5 Ohio St.2d 1, 213 N.E.2d 168 , the proposition that the underlying circumstances necessary to sustain a request for a res ipsa loquitur instruction to a jury may be established by expert testimony. This court set forth three basic rules to be utilized in making such a determination on the application of res ipsa loquitur in medical malpractice cases.

First, the doctrine cannot be " * * * based solely upon the fact that the treatment was unsuccessful or terminated with poor or unfortunate results." Oberlin, at paragraph three of the syllabus. Second, the doctrine applies "only where the instrumentality causing the injury was under the exclusive management and control of the defendant." Id. at paragraph four of the syllabus. Third, the plaintiff's offering of evidence to prove specific acts of negligence does not preclude the application of the doctrine of res ipsa loquitur if there is proof presented in support of application of the doctrine. See Oberlin, supra, at paragraph two of the syllabus. Thus, even though the appellants have presented expert testimony as to possible specific acts of negligence on the part of appellee or appellee's agents, such offerings would not preclude the instruction of res ipsa loquitur if otherwise justified by the circumstantial evidence adduced at trial.

The use of expert testimony in a medical malpractice case to establish 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 does not disqualify such case from the application of the doctrine of res ipsa loquitur. See Note, Malpractice and Medical Testimony (1963), 77 Harv.L.Rev. 333, 349, which states in pertinent part: "While lay knowledge is normally insufficient to say that the injury indicates negligence, it does not follow that expert knowledge is similarly incapacitated. Much as the...