Tennessee permits a plaintiff to rely on the res ipsa loquitor doctrine in medical negligence cases when appropriate under the facts. For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).
But take a look at this case out of Missouri. It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.
The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred." The plaintiff had an expert to support this position but who could not say how the infection actually occurred.
Given these allegation, the precise issue before the Court was "whether to permit medical experts to offer opinions on the issue of negligence of the defendants in a medical malpractice case that is brought on a theory of res ipsa loquitur rather than based on specific or general negligence."
The Court answered the question in the affirmative, citing the Restatement (Second) of Torts Sec. 328D, cmt. d., which says, in pertinent part, "expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff’s case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion." Tennessee also follows this rule. Seavers v. Methodist Med. Ctr., 9 S,W,3d 86, 91 (Tenn. 1999).
The case is Sides v. St. Anthony’s Medical Center, SC88948 (Mo. Aug. 5, 2008). Read it here.
Although 29 states have now adopted this rule, this is the first case I have read that applied the theory to an infection case. (I am not saying that there are not others; I am only saying that I do not recall reading others.) The significance of the application of the res ipsa doctrine is obvious: it is very tough to prove negligence in the ordinary infection case, and this decision puts one more arrow in the plaintiff’s lawyer’s quiver.
However, do not think for one minute that this decision opens the door to winning infection cases. First, this was an unusual infection to get after a back surgery. Second, who can be hit with a negligence verdict here? Was it the surgeon who did not properly wash his hands? Or the hospital which did not supply sterile instruments? If the plaintiff doesn’t know who it was, how can fault be assigned to one defendant? If it is just assigned "to the defendants" then how is it apportioned?
In short, this is an interesting opinion that will provide even more appellate litigation.