The District Court of Appeal of Florida Second District (“Florida Appellate Court”) stated in its March 22, 2024 opinion: “This appeal involves the application of the doctrine of res ipsa loquitur to a medical negligence action wherein Barber sustained bilateral hip fractures while unconscious in the Manatee Memorial intensive care unit (ICU), where he was being treated for a drug overdose. We conclude, based on the facts of this case, that Barber was entitled to assert res ipsa loquitur below and that the application of that doctrine creates a genuine dispute of material fact as to whether Barber’s unexplained bilateral hip fractures were the result of Manatee Memorial’s negligence. Accordingly, the trial court erred in entering summary judgment, and we reverse and remand for further proceedings. We further conclude that the trial court erred in granting Manatee Memorial’s motion in limine to exclude evidence of its failure to investigate the cause of Barber’s unexplained injuries once they were discovered. If this case does proceed to trial, such evidence is admissible.”
Although Barber did not reference the doctrine of res ipsa loquitur in his Florida hospital medical malpractice complaint, he did allege the following: “[O]n September 23, 2017, he walked into the hospital unassisted with no complaints of any femoral or acetabular problems, but when he awoke on or about September 26, 2017, the fractures to his proximal femur and acetabulum were grossly evident. Neither the Defendant’s agents, servants, nor employees ever advised Plaintiff of any trauma suffered while he was in Defendant’s custody and care or provided any explanation for his femoral or acetabular injuries despite Plaintiff’s pleas for an explanation since he had been totally unconscious for two and one-half (2 1/2) days; and it was obvious that he had been injured while under the care of the Defendant.”
Having no hospital records documenting any incident or event that could have caused Barber’s injuries, all medical experts were left to rely upon their collective medical skill, expertise, and knowledge as well as literature concerning the most common causes of bilateral hip fractures.
Manatee Memorial acknowledged that Barber may argue the doctrine of res ipsa loquitur. However, the hospital argued that he could not avail himself of the common law application of the doctrine because he could not establish that his injuries were the type that could only have been caused by negligence where his experts “acknowledged that these types of fractures can result from falls from multiple story buildings, a fall out of bed, or the patient getting out of bed on his own.”
The Florida Appellate Court stated: “Specific to medical negligence cases like the instant one, a plaintiff must present evidence from which a jury could conclude “that the injury was unrelated to the surgical procedure or other medical treatment” that the defendant was legitimately providing the plaintiff … the parties do not dispute that Barber’s bilateral hip fractures were completely unrelated to his medical treatment for his attempted overdose. Consequently, we need not further discuss this first criterion.”
Exclusive Control
“Additionally, to be entitled to argue res ipsa loquitur to the jury, a plaintiff must present sufficient evidence that “the instrumentality causing his or her injury was under the exclusive control of the defendant” and that the incident causing the injuries would not ordinarily occur “without negligence on the part of the one in control” … It is true that both parties’ experts had to agree that there was some possibility that Barber sustained the injuries before he arrived at the hospital, but that is because there is simply no explanation for Barber’s fractures. However, both parties’ experts also agreed that it was more probable that the injuries occurred while Barber was in the hospital. This evidence was sufficient to satisfy Barber’s burden, which at this point in the proceedings is only “to establish that the circumstances attendant to [his] injur[ies] are such that . . . negligence is the probable cause and [Manatee Memorial] is the probable actor” … Moreover, the record evidence established that Barber was walking around his garage when EMS arrived, that he walked to and got on the EMS gurney without assistance before being transported to the hospital, and that a musculoskeletal exam conducted in the emergency department indicated a normal range of motion of Barber’s upper and lower extremities. All of this, coupled with the report that EMS informed hospital personnel that he “walked from [EMS] stretcher to ER stretcher,” amounted to competent evidence from which a jury could conclude that Barber’s injuries occurred while he was a patient at Manatee Memorial.”
“Second, the trial court noted that nothing in Barber’s medical records indicated the mechanism that caused his injuries or the manner in which the injuries occurred. Although it is true that neither party’s experts were able to offer any definitive opinions as to the mechanism that caused Barber’s injuries and that there was no evidence of a documented fall or other incident that could have caused Barber’s injuries, the court’s reasoning in this regard exhibits a fundamental misunderstanding of the exclusive control requirement.”
“Accordingly, because Barber presented sufficient evidence from which the jury could conclude that Manatee Memorial had exclusive control over Barber while he was unconscious in the ICU for fifty-five hours, Barber has met his burden of establishing this res ipsa loquitur prerequisite.”
Injuries Would Not Ordinarily Occur Absent Negligence
“Here, Manatee Memorial’s own experts opined that the most common causes of bilateral hip fractures are falling from the height of a three-story building or being involved in a severe motor vehicle accident and that such injuries do not normally happen to an unconscious ICU patient. In fact, res ipsa loquitur is often invoked out of necessity in cases like this where a previously sedated and unconscious patient wakes up in a hospital with a new injury that is unrelated to their treatment and where there is little to no direct evidence of negligence proving who or what caused the injury.”
“In the instant case, expert testimony established that Barber’s injuries are not the type that result from lying unconscious in an ICU bed recovering from a drug overdose. Put another way, he presented sufficient evidence for a jury to reasonably conclude that under the circumstances, injuries like his would not occur absent negligence.”
The Florida Appellate Court held: “Barber satisfied all the prerequisites to avail himself of the doctrine of res ipsa loquitur, and the trial court erred in placing the burden upon Barber to prove direct evidence of Manatee Memorial’s
negligence. The lack of direct evidence of negligence is not fatal to Barber’s case; it is what makes it a res ipsa loquitur case. Requiring Barber to introduce evidence that would prove negligence would be to require him to defeat his own res ipsa loquitur claim. Because the record evidence establishes that Barber’s hip fractures were unrelated to his treatment for a drug overdose, that Manatee Memorial was in exclusive control of the instrumentality that caused his fractures, and that his fractures would not ordinarily occur absent negligence, Barber is entitled to argue res ipsa loquitur to the jury and have the jury instructed on a res ipsa loquitur inference of negligence. This inference creates a genuine dispute as to the material fact of whether Manatee Memorial breached a duty of care owed to Barber causing Barber’s injuries. As such, summary judgment was improper.”
Furthermore, “the lack of investigation weakens Manatee Memorial’s argument that Barber’s injuries were the result of an undocumented violent tonic-clonic seizure and establishes the limited foundation for the hospital’s expert witnesses’ opinions. And the trial court can appropriately instruct the jury that Manatee Memorial’s failure to investigate should be considered only for the purposes of demonstrating a lack of evidence surrounding the cause of Barber’s injuries and not as evidence of the hospital’s negligence … We reverse the entry of the final summary judgment and remand this matter for further proceedings, during which Barber may introduce evidence of Manatee Memorial’s failure to investigate how he sustained bilateral hip fractures while he was being treated for a drug overdose at Manatee Memorial.”
Source Barber v. Manatee Memorial Hospital, Limited Partnership, No. 2D22-3459.
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