August 18, 2019

The Arizona Court of Appeals Division One (“Arizona Appellate Court”), in its Memorandum Decision filed on July 30, 2019, held that the Arizona medical malpractice plaintiff’s reliance on res ipsa loquitur in her claim against the defendant surgeon failed because her expert’s testimony was insufficient to permit an inference that the defendant surgeon’s negligence was more likely than not the cause of her injury. Therefore, the defendant surgeon was entitled to summary judgment in his favor, as entered by the trial court.

The Underlying Facts

The defendant surgeon removed the plaintiff’s gallbladder by performing a laparoscopic cholecystectomy on February 1, 2013, and the plaintiff was discharged from the hospital three days later. Three days after discharge, the plaintiff returned to the hospital complaining of difficulty breathing, syncope, and hypotension. Two days later, after being transferred to another hospital, another surgeon performed an exploratory laparotomy and evacuation of a hematoma. The plaintiff subsequently was diagnosed with a pseudoaneurysm of the splenic artery, and was later diagnosed with possible pancreatitis for which she underwent multiple procedures, including an attempted splenic artery embolization and an exploratory laparotomy during which her spleen was removed.

The plaintiff alleged in her Arizona medical malpractice lawsuit that the defendant surgeon negligently caused a surgical instrument to come into forceful contact with an artery supplying blood to her spleen, causing damage to the wall of the artery and gradual formation of a pseudoaneurysm on the artery that later burst, resulting in the permanent removal of her spleen. The plaintiff further alleged that the defendant surgeon negligently caused a surgical instrument to cut into her liver, causing her damaged liver to bleed.

The plaintiff’s expert was uncertain what the defendant surgeon did that caused the damage but contended that there was no other explanation as to why the artery was damaged other than it came into contact with something that the defendant surgeon inserted into her body. The defendant surgeon moved for summary judgment, and the trial court granted summary judgment for the defendant, concluding that res ipsa loquitur did not apply. The plaintiff appealed.

Arizona Appellate Court Decision

The Arizona Appellate Court stated that a plaintiff arguing res ipsa loquitur must establish that the accident is of a kind that ordinarily does not occur in the absence of negligence, that the accident was caused by an agency or instrumentality subject to the control of the defendant, and that the plaintiff is not in a position to show the circumstances that caused the agency or instrumentality to operate to her injury. To survive summary judgment on the first element of res ipsa loquitur, the evidence presented must be sufficient to allow the jury to infer that negligence was more likely than not the cause of the accident: the facts must justify the conclusion that negligence is the most likely explanation for the occurrence.

The plaintiff’s expert’s affidavit opined that the defendant surgeon caused the plaintiff’s injury by inserting trocars in such a manner as to cause injury to the wall of the splenic artery, by cutting into the liver of the patient resulting in internal bleeding, and by concluding the operative procedure without sufficient effort to determine whether or not there was any bleeding in the operative area before closing the wound. However, in his deposition two years later, the plaintiff’s expert testified that there could have been trocar injury and instrumentation was a possible cause of injury, but he could not say whether the plaintiff’s injury was caused by the defendant surgeon’s trocar use or by post-operative pancreatitis. He also testified that bleeding is a risk associated with a laparoscopic cholecystectomy even when the procedure is performed correctly, though he also stated that he was not aware of any other cases of splenic artery injury resulting from that procedure. The plaintiff’s expert conceded that the defendant surgeon had appropriately checked for bleeding during the plaintiff’s cholecystectomy.

The Arizona Appellate Court held: “Given the significant conflicts between [the plaintiff’s expert’s] affidavit and subsequent deposition testimony, the superior court did not err by concluding that the evidence was insufficient to permit the jury to infer that [the plaintiff’s] injury would not have occurred absent negligence.”

Source Korak v. Para, No. 1 CA-CV 18-0444.

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