Res Ispa Loquitor – Jury instruction is valid where doctor involved in leaving drain in patient’s abdomen requires expert testimony to establish res ispa loquitor

William Scott et al., v. Constanze Rayhrer., 2010 DJDAR 100067  (June 1, 2010).

Plaintiff sued his physician related to a medical malpractice claim.  Plaintiff contended that a drain inserted after surgery was left in the plaintiff’s abdomen and not discovered and removed until twenty months later.  Plaintiff contended that the trial court erred in denying his request for a res ipsa loquitur instruction as to the doctor, instructing the jury that a finding of res ipsa loquitor against the doctor must be based on expert testimony, and refusing to instruct the jury that meeting the community standard of care does not excuse unreasonable conduct.  The appeals court affirmed the trial court’s ruling. 

         The appeals court held that expert testimony generally is required in every professional negligence case to establish the applicable standard of care, but an exception exists when a foreign object such as a surgical instrument is left in a patient following surgery and when a plaintiff can invoke the doctrine of res ipsa loquitur.  In such a case, negligence is a matter of common knowledge amongst laymen and expert testimony is unnecessary.  Plaintiff claimed the drain is similar to a sponge or clamp left in the patients’ body after surgery and is thus applicable to a res ipsa loquitur instruction without expert testimony.  The trial court disagreed and determined the drain was not inadvertently left during surgery, it was inserted after surgery and was meant to be retained temporarily.  The entire circumstance required complex medical procedures beyond the comprehension of a layman and which could only be explained by an expert.  As such, the trial court did not err in its instruction for expert testimony.

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