Talbot v. Dr. W. H. Groves' Latter-Day Saints Hospital, Inc.

• Decision Date: 02 May 1968
• Docket Number: No. 10970,LATTER-DAY,10970
• Citation: 440 P.2d 872,21 Utah 2d 73
• Parties: d 73 Elden R. TALBOT, Plaintiff and Appellant, v. DR. W. H. GROVES'SAINTS HOSPITAL, INC., and the Estate of Burke M. Snow, M.D., By and Through its Administrators, Zions First National Bank, Melba B. Smith, Pamela B. Snow and Phylis K. Snow, and Grant M. Reeder, M.D., Defendants and Respondents.
• Court: Utah Supreme Court

Page 872

440 P.2d 872

21 Utah 2d 73

Elden R. TALBOT, Plaintiff and Appellant, v.DR. W. H. GROVES' LATTER-DAY SAINTS HOSPITAL, INC., and the Estate of Burke M. Snow, M.D., By and Through its Administrators, Zions First National Bank, Melba B. Smith Pamela B. Snow and Phylis K. Snow, and Grant M. Reeder M.D., Defendants and Respondents.

No. 10970.

Supreme Court of Utah.

May 2, 1968.

Joseph S. Knowlton, of Wilkinson, Wilkinson & Knowlton, Salt Lake City, for appellant.

Albert R. Bowen, John H. Snow, Jay E. Jensen, Salt Lake City, for respondents.

TUCKETT, Justice:

The plaintiff, Elden R. Talbot, filed this action against the defendants wherein he seeks to recover for an injury suffered by him while undergoing treatment of his lower back.

Talbot, a 39-year-old carpenter, suffered an injury to his lower back in an industrial accident in October 1963.Talbot was admitted to the defendant hospital for treatment of his back injury, and on January 9, 1966, Dr. Burke M. Snow operated on his back to repair a herniated disc with a spinal fusion.The anesthetic was administered by Dr. Grant M. Reeder, one of the defendants.Dr. Owen Smoot assisted Dr. Snow in the surgical procedure but he was not made a party to this action.

After the operation Talbot was removed to the recovery room and after a period of time he was taken to his own room.Talbot had been in his own room for a period of approximately 30 minutes and had sufficiently recovered from the effects of the anesthetic to notice that his right arm felt numb.Before Talbot's awakening there was a period when he was lying on his right side with his arm under him, and during one period his forearm and hand were hanging over the side of the bed.Prior to surgery Dr. Reeder administered the anesthetic through a needle inserted in Talbot's right arm.Dr. Reeder testified as to his usual practice in placing padding under various bony prominences in order to avoid problems caused by weightbearing at such points.Dr. Reeder did not recall this particular operation.The record is silent as to what, if anything, went on while the plaintiff was in the recovery room and the length of time the plaintiff was there and who was in charge of him during that period.

After it was discovered that Talbot was having difficulty with his right arm, Dr. Snow referred him to a neurologist, Dr. Garth G. Myers.Dr. Myers testified that the probable cause of the damage to the nerves of the plaintiff's lower arm could have been caused by a lack of blood supply to those nerves.Dr. Myers further testified that this type of nerve injury was uncommon but that he was unable to arrive at any definitive cause for impairment of the blood supply in this case.Neither Dr. Myers nor Dr. Reeder, who also testified as an adverse party had an explanation for the cause of the plaintiff's disability.

The plaintiff does not claim that the defendants were guilty of specific acts or omissions amounting to negligence, but he does contend that he is entitled to the benefit of the doctrine of res ipsa loquitur on the basis that his injury would not have occurred without the negligence on the part of someone, and that he was within the control of the defendants when he suffered the injury.The defendants claim that the foundational facts are insufficient to permit application of the doctrine.

Our examination of the decisions of this court would indicate that the doctrine of res ipsa loquitur has not been applied in a malpractice case of this nature in this jurisdiction.However, prior decisions do not indicate that the doctrine has no application in this type of case, and we are of the opinion that if there is sufficient evidentiary foundation the doctrine should be applied.

In examining the facts of the case before uswe are of the opinion that there is insufficient foundation on which to base the doctrine of res ipsa loquitur.The fact that plaintiff's disability resulted from an uncommon or rare occurrence does not relieve him of the burden of establishing causation.An inference of negligence cannot be permitted solely upon the basis that the plaintiff developed a rare complication while undergoing medical and surgical treatment.The doctrine of res ipsa loquitur has no application unless it can be shown from past experience that the occurrence causing the disability is more likely the result of negligence than some other cause.In the state of California where the courts have applied the doctrine of res ipsa loquitur in a number of mal practice cases, ¹ the decisions have laid down a requirement that the proof must show acts of negligence which could have caused the injury or disability.In the latest California case brought to our attention, Tomei v. Henning, ²the Supreme Court of that State had this to say:

Since the res ipsa loquitur instruction permits the jury to infer negligence from the happening of the accident alone, there must be a basis either in common knowledge or expert testimony that when such an accident occurs, it is more probably than not the result of negligence.

The plaintiff seeks to recover as against each of the defendants by showing that at one time or another during his treatment at the hospital Dr. Snow, Dr. Reeder and the personnel of the hospital were in charge of him.The plaintiff does not attempt to show that the injury to his arm occurred while he was in the care of a particular defendant or defendants.The testimony produced by the plaintiff fails to show the thing, instrument or occurrence which caused the plaintiff's disability.Neither does the testimony show which of the defendants had the responsibility for the instrumentality which caused plaintiff's disability.The plaintiff's case in this respect fails to meet the standards for the application of the doctrine as set forth in prior decisions of this court.³ In this casethe plaintiff asks the court to extend the doctrine of res ipsa loquitur to a situation where a number of people had control or partial control of the plaintiff during surgery and thereafter, and where his injury may have occurred by the act or omission of any one of them, and outside the observation of the others.It would seem to us that such an extension to the doctrine would be unwarranted and it would be using the doctrine to accomplish a result without regard to its limitations.⁴

Our review of the evidence indicates that the trial court was correct in directing a verdict in favor of the defendants.The judgment of the lower court is affirmed.Costs to the defendants.

COLLISTER, J., concur.

HENRIOD, Justice (concurring).

I concur.In doing so I dissent from the dissent of Mr. Justice Ellett's thesis about multiple defendats in res ipsa loquitur cases.

In the first place, the dissent leans almost entirely on Ybarra v. Spangard, ¹ which has been honored only for its dissonance with common law fundamentals.The other cases cited in the dissent either rely on such dissonance by citing this case, or have no pertinency here.That case, almost humorously referred to as the father of the 'California res ipsa'rule ² has been followed only by emotion,--not reason, logic or the application of legal principles.At best, and in all fairness it should be dubbed the father of a yet unborn child, conceived to father another unborn child,--liability without fault.

The dissent cites Horner v. No. Pac. Ben. Assn. in support of its position.It truly is not in support of Ybarra at all, since it did not involve multiple defendants, but only one,--alleged to have had complete control.The decision admitted the cause 'could readily be proved,' and that the doctrine of res ipsa loquitur did not apply.

The dissent then cites Meyer v. St. Paul Mercury IndemnityCo., ³ which relied on Ybarra, compounding the latter's error.It follows with Voss v. Bridwell, ⁴ which case with great largess, latitude and longitude had to do with the 'entire, complete and exclusive supervision and control' of all of said defendants,--not the case here.The court said 'We have not overlooked Ybarra * * *.There some of the language used in discussing res ipsa loquitur as applicable to medical malpractice cases is inconsistent with Kansas law and the case cannot be cited with full approval.'In Beaudoin v. Watertown Memorial Hosp., ⁵ the focal point was not so much res ipsa loquitur, but stated that the facts indicated that laymen could decide the matter without expert opinion, and that the defendants had complete control.That is not the case here, where the facts did not reflect who had control, but guessed about that phase of the case by simply saying somebody had control and that everybody joined in the action should pay.The other cases cited have similar infirmities that do not apply to the facts in the instant case.

One need only to read 'Res Ipsa Loquitur: Tabula in Naufragio' by Seavey in 63 Harvard Law Review 643, 1950, and 'Medical Malpractice: Misuse of Res Ipsa Loquitur' by O. C. Adamson, 46 Minnesota Law Review 1962, to catch the vulnerability of Mr. Justice Ellett's dissent and the inept citations mentioned.

Furthermore, I would like someone to tell me how the so-called res ipsa loquitur rule, which requires the defendant to come forward and explain his doings, can apply when the defendant is dead and buried,--as is the case here.I have apprehension in visualizing the omniscience of the Zions First National Bank's explaining how the sponge or something else innocently stayed in a patient's gullet.

Also, I would like to know how justifiably you can sue only five of ten known participants in a surgery, thereby relieving the other five, any of whom could have been the negligent one, and then get a judgment against the five multiple defendants who, possibly having the means financially to respond, are summoned as 'multiple'defendants and all of whom get stuck for a money judgment, because it is out of their power or ability to explain.That was...