Opinion
No. 25931-5-III.
June 10, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 05-2-01943-2, James P. Hutton, J., entered January 19, 2007.
Reversed by unpublished opinion per Schultheis, C.J., concurred in by Kulik, J., and Thompson, J. Pro Tem.
Phonsenette Lomax claims she suffered a broken rib in her left upper chest area while she was anesthetized for surgery to repair an incisional hernia below her navel. She sued the hospital for medical negligence, advancing a res ipsa loquitur theory. The trial court granted summary dismissal to the hospital because the hospital presented evidence that, if believed, showed that the injury predated Ms. Lomax's hospitalization. We conclude that because Ms. Lomax has presented an issue of fact as to the pre-existence of the injury, summary dismissal was improper. We therefore reverse.
FACTS
After gastric bypass surgery, Ms. Lomax developed an incisional hernia below her navel. She underwent surgery to repair the hernia at Yakima Valley Memorial Hospital on July 2, 2002. The hospital records show that when she awoke from surgery in her hospital room, she felt severe pain in her ribs under her left breast, accompanied by extensive bruising, and had difficulty breathing. An electrocardiogram was ordered to rule out a cardiac event. She continued to complain of and be medicated for the chest pain during her three-day hospital stay.
Ms. Lomax followed up with her surgeon, D.E. Nadig, M.D. Because Ms. Lomax continued to complain of pain in her left rib area, Dr. Nadig ordered chest x-rays on July 23. The x-ray showed a lateral 10th rib fracture. Ms. Lomax was treated with pain medication and assured that the pain would substantially subside within a month. Dr. Nadig informed Ms. Lomax that the fracture was neither caused by his surgical technique nor occurred during his presence in surgery.
Ms. Lomax brought an action against the hospital for medical negligence and asserting the application of the doctrine of res ipsa loquitur. The hospital brought a summary judgment motion, arguing that Ms. Lomax could not sustain a prima facie case of res ipsa loquitur or medical negligence.
The hospital supported its motion with the declarations of an operating room technician, a registered nurse, and a certified registered nurse anesthetist, each of whom was involved in Ms. Lomax's surgery. None of these witnesses could recall an incident in which Ms. Lomax was bumped or dropped in their presence. The hospital also provided a declaration of Ronald Cocchiarella, M.D. After reviewing the x-rays, Dr. Cocchiarella, a radiologist, opined that "if there is a fracture, it is an old fracture, at least over a year old." Clerk's Papers (CP) at 204.
Ms. Lomax submitted a declaration denying a pre-existing rib injury. She also provided a declaration from an orthopedic surgeon, Thomas L. Gritzka, M.D. Dr. Gritzka opined that Ms. Lomax's rib fracture more likely than not occurred when she was under anesthesia as a result of her being moved by hospital employees, and not due to Dr. Nadig's surgery. Dr. Gritzka also stated that, given the force necessary to fracture a rib, the incident causing the trauma would not happen in the absence of negligence. As for Dr. Cocchiarella's opinion, Dr. Gritzka stated, "Interpreting x-rays can be more of an art than a science, and two doctors can have differing opinions." CP at 125.
The superior court judge granted the hospital's summary judgment motion, stating in his memorandum opinion:
Here, there is evidence from which the trier of fact may infer that the injury pre-existed the hospitalization. This could lead to a conclusion that the Plaintiff contributed in some way to the injury if Dr. Cocchiarella is believed. Thus there is a failure of the third criteria of res ipsa loquitur.
CP at 23-24.
Ms. Lomax's motion for reconsideration was denied. This timely appeal followed.
DISCUSSION
Summary judgment is appropriate if all the pleadings, depositions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The moving party has the burden of proving that no factual dispute exists that might affect a trial's outcome. Allstate Ins. Co. v. Raynor, 143 Wn.2d 469, 475-76, 21 P.3d 707 (2001). We view all facts and reasonable inferences in the light most favorable to the nonmoving party. Id. at 475.
This court decides whether Ms. Lomax may employ the res ipsa loquitur doctrine as a question of law, which is reviewed de novo. Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003).
The res ipsa loquitur doctrine is available to a plaintiff if three elements are established: (1) the accident or occurrence is of a kind that ordinarily does not happen in the absence of someone's negligence, (2) the injuries were caused by an agency or instrumentality under the exclusive control of the defendant, and (3) the plaintiff did not contribute to the injury-causing accident or occurrence. Zukowsky v. Brown, 79 Wn.2d 586, 593, 488 P.2d 269 (1971).
When res ipsa loquitur applies, it provides a type of circumstantial evidence from which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relationship to it. Metro. Mortgage Sec. Co. v. Wash. Water Power, 37 Wn. App. 241, 243, 679 P.2d 943 (1984) (quoting Restatement (Second) of Torts § 328D cmt. b (1965)).
The applicable burden of proof was succinctly stated recently by Division Two of this court:
A plaintiff presenting a res ipsa loquitur theory retains the ultimate burden of persuading the court by a preponderance of evidence that negligence has occurred. But once the plaintiff has produced sufficient evidence to raise the res ipsa loquitur inference, a jury question has been raised unless the defendant produces evidence of an alternate cause rebutting the inference.
Robison v. Cascade Hardwoods, Inc., 117 Wn. App. 552, 563-64, 72 P.3d 244 (2003) (citation omitted).
The Robison court acknowledged the reasoning of the Supreme Court:
"[I]t makes little sense to deny . . . the doctrine of res ipsa loquitur simply because the defendant offers evidence that provides a possible explanation of the event. . . . [T]he res ipsa loquitur doctrine allows the plaintiff to establish a prima facie case of negligence when he cannot prove a specific act of negligence because he is not in a situation where he would have knowledge of that specific act. Once the plaintiff establishes a prima facie case, the defendant must then offer an explanation, if he can.
Id. at 564-65 (second alteration in original) (quoting Pacheco, 149 Wn.2d at 441).
"Whether an injury supports a reasonable and legitimate (as opposed to conjectural) inference of negligence requires that the context, manner, and circumstances of the injury are `of a kind that do not ordinarily happen in the absence of someone's negligence.'" Id. at 565-66 (quoting Zukowsky, 79 Wn.2d at 595). There are three recognized ways to make this showing:
(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries.
Pacheco, 149 Wn.2d at 438-39 (internal quotation marks omitted) (quoting Zukowsky, 79 Wn.2d at 595).
Ms. Lomax, through Dr. Gritzka, presented evidence of the third type. Dr. Gritzka stated that because of the amount of force necessary to fracture a rib, the incident causing the trauma would not happen in the absence of negligence.
The hospital argues that Dr. Gritzka based his opinion on the assumption that Ms. Lomax was dropped or run into a door jamb while being transported from the operating room to the recovery room. And because that assumption is not based on evidence, Dr. Gritzka's opinion is speculative.
In addressing how the rib fracture could have occurred, Dr. Gritzka stated that "the charts offer no clue." CP at 80. He said that the event causing the injury likely occurred during her transportation, and he offered possible scenarios in which a sufficient force to cause the trauma could have occurred, including being dropped or run into something. More specifically, Dr. Gritzka stated:
My opinion, on a more probable than not basis, is that dropping a patient from a gurney, or running them into a wall or door jamb, or otherwise causing trauma to him or her causing a rib fracture, would violate any applicable standard of care. Self evidently, injuring a patient in that manner would violate the standard of care of a reasonably prudent person . . . [T]he applicable standard of care requires moving, caring for, and transporting patients to and from surgery without significant impact or trauma. The standard of care was plainly violated in Ms. Lomax's case.
CP at 82.
Ms. Lomax has sufficiently satisfied this element with Dr. Gritzka's opinion.
The hospital argues that the evidence is insufficient to show that Ms. Lomax was within the hospital's exclusive control; that she could have been under the control of Dr. Nadig or the anesthesia group or some other third party before or after her surgery. The evidence shows otherwise.
The law requires that "the defendant must have exclusive, `actual or constructive control' of the `instrumentality' to the extent that it caused the injury." Robison, 117 Wn. App. at 568 (quoting Zukowsky, 79 Wn.2d at 595). This requirement recognizes that "`"the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it."'" Id. (quoting Zukowsky, 79 Wn.2d at 595 (quoting William Lloyd Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 201 (1940))).
As in Robison, the pivotal issue is whether Ms. Lomax sufficiently identified the instrumentality causing the injury as something associated with the hospital. Id.
In Robison, a logging truck operator suffered severe internal injuries from an electrical shock he received while operating a lumber mill's trailer loader in the rain. Id. at 556. A trailer loader is a winch system that lifts the empty logging trailer and places it piggyback atop the truck tractor to shorten the trailered length, making it easier to drive.
In the ensuing litigation, the logging company moved for summary judgment arguing that res ipsa loquitur did not apply to the trailer loader. Id. at 561. Mr. Robison responded that although the trailer loader was the instrument that delivered the injury, the cause of the injury was the logging plant's defective electrical system. He asserted that there was no other way he could have sustained such an injury without a flawed system. In other words, the 480-volt trailer loader motor and its 24-volt handheld control system were both insufficient to cause Mr. Robison's extensive injuries. Id. at 556, 561. The origin of the electric shock was uncertain. Id. at 559. But Mr. Robison presented the expert testimony of an electrical engineer who presented numerous theories. Id. at 562 n. 5. The grant of the lumber mill's summary judgment motion was reversed on appeal.
These theories included that "(1) old mills often have old, disconnected, buried power lines and conduits from having moved various electrically powered machines; (2) the insulation on buried wires will deteriorate, exposing them; (3) exposed wires will charge the nearby ground; and (4) water, a strong conductor, could then have conducted the electrical charge to Robison." Robison, 117 Wn. App. at 562 n. 5.
Addressing the exclusive control argument, the Robison court pointed out that the Washington Supreme Court rejected a Court of Appeals decision that "`would defeat the doctrine of res ipsa loquitur in cases where the defendant offers some evidence explaining the injury.'" Id. at 569 (quoting Pacheco, 149 Wn.2d at 440). Instead, the Washington Supreme Court held:
"In adopting the rule that the doctrine of res ipsa loquitur is inapplicable only where the evidence completely explains the plaintiff's injury, we have noted that a plaintiff is not bound by the testimony of the defendant or his witnesses. Thus, the plaintiff may be entitled to rely on the res ipsa loquitur doctrine even if the defendant's testimony, if believed by the jury, would explain how the event causing injury to the plaintiff occurred. . . . Even where the defendant offers weighty, competent and exculpatory evidence in defense, the doctrine may apply. In sum, the plaintiff is not required to `"eliminate with certainty all other possible causes or inferences"' in order for res ipsa loquitur to apply. Douglas [v. Bussabarger], 73 Wn.2d [476,] at 486[, 438 P.2d 829 (1968)] (quoting William L. Prosser, Law of Torts 222 (3d ed. 1964)).
Id. at 569 (quoting Pacheco, 149 Wn.2d at 440-41).
Thus, the Robison court held that Mr. Robison's inability to specify the exact cause of his electrical injuries was not fatal to his claim; designating the faulty electrical system as the instrumentality was sufficient. Id.
The hospital argues that because Ms. Lomax cannot pinpoint the exact cause of the injury, the res ipsa loquitur doctrine does not apply. This was the same argument made by the logging company in Robison. The same result follows.
Here, as in Robison, although her expert set forth some theories, the cause of Ms. Lomax's injury cannot be ascertained from the evidence presented. She generally identifies the instrumentality as the hospital's unsafe transportation from the operating room to the recovery room. As in Robison, this is sufficient.
Robison also addresses the hospital's argument that it presented sufficient evidence from employees denying that Ms. Lomax was injured while "under their care." Resp't's Br. at 11; see Pacheco, 149 Wn.2d at 440 ("Even where the defendant offers weighty, competent and exculpatory evidence in defense, the doctrine may apply."). The general denial is an issue for the jury to resolve.
Ms. Lomax is not required to identify the actual force that initiated the motion or set the instrumentality in operation in order to rely on the res ipsa loquitur doctrine. If the specific and actual force that initiated the motion or set the instrumentality in operation were unequivocally known, there would be no reason for the inference that some unknown negligent act or force was responsible; thus, the res ipsa loquitur doctrine could not be invoked. Robison, 117 Wn. App. at 569 (quoting Gayheart v. Dayton Power Light Co., 98 Ohio App. 3d 220, 648 N.E.2d 72, 78 (1994)); see also 57B Am. Jur. 2d Negligence § 1320 (2004) ("if the petition alleges particular acts of negligence, then the plaintiff, in order to recover, must establish the specific negligence alleged, and the doctrine of res ipsa loquitur cannot be applied"). Ms. Lomax is not required to show that her injuries were more likely caused by any particular hospital employee or agent. Nor must she eliminate all causes of her injuries other than the negligence of one or more of the hospital employees or agents.
The hospital relies on Howell v. Spokane Inland Empire Blood Bank, 114 Wn.2d 42, 785 P.2d 815 (1990). In Howell, the plaintiff sought to apply the res ipsa loquitur doctrine in an action against a hospital where he received a blood transfusion that caused him to contract HIV (human immunodeficiency virus) associated with AIDS (acquired immune deficiency syndrome). Id. at 44-45, 58. The Washington Supreme Court held that the hospital did not have exclusive control of the blood, which was donated by one party, collected by the blood bank, and transfused by the hospital. The facts are different here. Whatever the exact agency or instrumentality that may have led to the trauma, the evidence shows that it was under the hospital's exclusive control. Indeed, no other person or entity would be responsible for postoperative transportation.
The hospital suggests that because Ms. Lomax was also treated in the hospital by a physician and anesthesiologist (evidently not an employee or agent of the hospital), she has not shown the exclusive control. A similar argument was made in Leach v. Ellensburg Hospital Association, 65 Wn.2d 925, 400 P.2d 611 (1965).
In Leach, a patient was hospitalized for a broken vertebra where a doctor applied a cast. She suffered a burn injury to her back and sued the hospital. The hospital characterized the burn as caused by the rubbing of the body cast (which was under control of the private physician), rather than by a heat lamp used to cure the wet cast (which was under control of the hospital). Id. at 937. The trial court found that res ipsa loquitur did not apply and ordered a directed verdict for the defendant hospital. On appeal, the court reversed, holding that it was for the jury to decide whether the rubbing of the cast or the heat lamp caused the burns in question, based on whose witness the jury believed. Id. at 936. And because the jury could believe that the burn was caused by the hospital's use of the heat lamp — and therefore complete control of the injury-causing instrumentality — "the trial court could not rule as a matter of law that the hospital did not have `exclusive' control." Id. at 937. The court concluded: "Who had control depends on what caused the injury, in this view of the case." Id. The same is true here.
In order to apply res ipsa loquitur, a plaintiff may not contribute to her own injury. This element refers to "`voluntary action or contribution' in the event" at issue. Zukowsky, 79 Wn.2d at 595-96. The trial court found that, with the hospital's evidence of a pre-existing injury, Ms. Lomax could not prove the third prong of res ipsa loquitur.
[T]he third prong of the res ipsa loquitur test does not require a plaintiff to produce evidence that "preclude[s] the possibility that defendant can establish a defense based on plaintiff's conduct." Rather, it bars the doctrine only if, "after all evidence is in, it can be said as a matter of law that plaintiff is precluded from recovery by his own `voluntary action or contribution'" because, in these cases, "the evidence wholly refutes plaintiff's right to recover for any such negligence."
Robison, 117 Wn. App. at 572-73 (second alteration in original) (footnote omitted) (quoting Zukowsky, 79 Wn.2d at 596).
Here, Ms. Lomax could not have contributed to her own injury because she was anesthetized during the time of the event at issue. Pacheco, 149 Wn.2d at 437. Despite contradicted evidence to satisfy the elements, a plaintiff may proceed to trial under a res ipsa loquitur theory. See Miles v. St. Regis Paper Co., 77 Wn.2d 828, 833-34, 467 P.2d 307 (1970) (holding that the presentation of evidence, though contradicted, regarding the plaintiff's lack of contribution to his own injury was sufficient to permit the trial judge to instruct the jury on res ipsa loquitur theory).
With Dr. Cocchiarella's assertion of a pre-existing injury, he casts doubt on whether there was any event at the hospital at all, which is the position of the hospital as supported by the declarations it submitted. Despite this evidence,
the jury may still be permitted to infer that the defendant's witnesses are not to be believed, that something went wrong [even] with the precautions described, that the full truth has not been told. As the defendant's evidence approaches complete demonstration that the event could not possibly have occurred, it is all the more clearly contradicted by the fact that it has occurred.
Restatement (Second) of Torts § 328D cmt. n (1965).
Ms. Lomax presented evidence that she did not have a pre-existing rib injury. Ms. Lomax's evidence is supported not only by Dr. Gritzka's review of the x-rays, but the uncontroverted facts that Ms. Lomax had bruising and pain localized outside of the surgical area immediately after awaking from anesthesia.
The issue is for the jury.
Reversed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, J. and THOMPSON, J. PRO TEM, concur.