In its Opinion filed on October 28, 2021, the Appellate Court of Illinois Fourth District (“Illinois Appellate Court”) stated in a surgical hip replacement medical malpractice case: “a plaintiff need demonstrate only a prima facie case of the elements of res ipsa loquitur to be entitled to proceed to trial using that method of proof. This reasoning makes sense because the plaintiff may have no idea how the injury happened and, as in this case, the medical records may state that everything occurred normally and the providers complied with the standard of care.”
The Underlying Facts
In September 2018, the Illinois medical malpractice plaintiff filed a complaint alleging that the defendants negligently performed a left total hip arthroplasty (THA) that resulted in his suffering permanent femoral nerve damage (following the surgery, the plaintiff had femoral nerve palsy, and subsequent testing revealed he had “severe left femoral neuropathy that is specific to the branches to the vastus lateralis and rectus femoris muscles”). The plaintiff advanced two legal theories of recovery: ordinary negligence and res ipsa loquitur. In the res ipsa loquitor count, the plaintiff alleged that (1) defendant Armstrong (the primary surgeon) was assisted by defendant Harden (a nurse), (2) the injury to the plaintiff’s femoral nerve occurred while the retractors and other surgical instruments were under Armstrong and Harden’s control, and (3) the plaintiff’s injuries ordinarily would not have occurred if the standard of care was met. The trial court subsequently entered written orders, entering judgment in the defendants’ favor on the res ipsa counts and making a finding that the orders were final and appealable pursuant to Illinois Supreme Court Rule 304(a). The plaintiff appealed.
Res Ipsa Loquitur
The doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence from circumstantial evidence when direct evidence of the cause of the injury is primarily within the knowledge and control of the defendant. The doctrine is not a separate theory of liability but a type of circumstantial evidence which permits the trier of fact to infer negligence when the precise cause of injury is not known by the plaintiff. A plaintiff seeking to rely on the res ipsa doctrine must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant’s exclusive control.
If the plaintiff was unconscious at the time of the injury, and under the defendants’ control, then the plaintiff has adequately shown the control element for res ipsa loquitur, even if she cannot establish the exact instrumentality that caused the injury. Further, if the plaintiff can convince a finder of fact that the injury occurred during the surgery, it can be inferred that the instrumentality of the injury was the handling of the plaintiff by defendants.
Under Illinois precedent, a plaintiff is not required to show that his injuries were more likely caused by any particular one of the defendants in order to proceed with his res ipsa claim, nor must he eliminate all causes of his injuries other than the negligence of one or more of the defendants. In order to show the first element of res ipsa loquitur, an occurrence that ordinarily does not happen in the absence of negligence, a plaintiff is not required to show that the injury in question never happens without negligence, only that it does not ordinarily happen without negligence.
In the case the Illinois Appellate Court was deciding, the plaintiff’s expert testified during his deposition that a retractor caused the injury. His opinion was based on the medial location of the incision, which would have increased the proximity of the retractor to the branches of the femoral nerve that were ultimately permanently injured and increased the risk of damage. He acknowledged that the location of the incision was not a violation of the standard of care despite the increased risk of nerve damage. Although he agreed that femoral nerve injuries were a known risk of total hip replacement surgery, he clarified that the type and degree of such injuries were limited to transient symptoms that eventually resolved or to mild symptoms that were generally tolerable. He unequivocally stated that the plaintiff’s injury, a permanent denervation of multiple branches of the femoral nerve resulting in the inability to use two of his quadricep muscles, was not the type of injury that would have occurred in the absence of negligence.
The Illinois Appellate Court held that the plaintif’s expert’s depostion testimony “was sufficient to establish a genuine issue of material fact regarding the cause of [the plaintiff’s] injury. [The plaintiff] was not required to eliminate all possible causes of the injury, nor was he required to show that the injury could only be the result of negligence … Although defendants are correct that an unexpected result is not enough on its own to invoke the res ipsa doctrine, such a result is sufficient when coupled with expert testimony that the result does not ordinarily occur in the absence of negligence.”
Source Johnson v. Armstrong, 2021 IL App (4th) 210038.
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