Remember Byrne v. Boadle (the barrel of flour)?

Modern Byrne v. Boadle; watch the video below:

New study on medical errors but no study on gun violence

I am taking a short break from grading final exams to post a few links to a couple of interesting items in the news from last week.

First, there was a new report on a new study quantifying how often surgeons make mistakes that should never happen -- such as leaving an object in a patient, performing the wrong procedure, or performing the procedure on the wrong body part. The Washington Post coverage is here (with charts), and the study press release is here.  AboutLawsuits has a comment here.  The PopTort has a comment here.  Thanks to Public Citizen for the links.

Second, there was the terrible news of the school shooting in Connecticut.  As you know the event has regenerated the debate on gun control and on whether there can be liability for the injuries suffered.  There is a lot of literature on this.  But Torts Today has published a piece on a part of the debate that I did not know about.  The fact that Congress has banned gun injury prevention research.  As explained in the article, originally published in the Journal of the American Medical Association,

Injury prevention research can have real and lasting effects. Over the last 20 years, the number of Americans dying in motor vehicle crashes has decreased by 31%. Deaths from fires and drowning have been reduced even more, by 38% and 52%, respectively. This progress was achieved without banning automobiles, swimming pools, or matches. Instead, it came from translating research findings into effective interventions.

Given the chance, could researchers achieve similar progress with firearm violence?  It will not be possible to find out unless Congress rescinds its moratorium on firearm injury prevention research.

Read the full article here.

Story about a sponge left in patient after surgery

Here is a story in the Wall Street Journal about a judge who suffered injuries because of a sponge left in his abdomen after surgery. He settled a claim with the hospital and now reportedly plans to sue the doctors. What I find most interesting here is the discussion among readers in the "comments" section (here) which turns to the question of tort reform and whether patients in a clear case of negligence such as this one should be subject to caps on the amount of money they can recover.

Res Ipsa Loquitur? Are farmers liable for cow that falls from the sky?

In Spanish the word "res" means cattle and the Latin word "loquitur" sounds like it would be related to "loco" which means crazy, and "ipsa", well, I guess that just sounds fast... so in Puerto Rico, law students remember the concept of "res ipsa loquitur" by translating it as "la vaca corre como loca" -- which absurdly means "the cow runs like crazy". In the US, law students remember res ipsa loquitur from the famous old case of the barrel of flour that falls on the plantiff. Well, now comes today's crazy story about torts combining both of these, sort of... What if a cow, running like crazy, falls off a cliff and lands on the plaintiff? Like I tell my students, I don't make these things up! The story is available here and this is the first paragraph: "A cow fell about 200 feet off a cliff Sunday and landed on the hood of a minivan passing by Rocky Point about one mile east of Manson, officials said." In response, Prof. Jonathan Turley, who brought the story to my attention first, offers other bizarre bovine airborne stories here.

Court of Appeals for the 7th Circuit interprets Illinois law related to Res Ipsa Loquitur

Earlier today I posted a quote from a new case out of the Court of Appeals for the 7th Circuit on the importance of preserving evidence and making sure the judges have a clear picture of the facts, so to speak (here). At the bottom of that note, I mentioned that the case was about the possible application of the doctrine of res ipsa loquitur. Here is a comment about that part of the case.

 In the case, to support its argument that the defendant breached its duty of care, the plaintiff tried to rely on the doctrine of res ipsa loquitur, which allows a plaintiff to prove negligence by showing that even if there is no direct evidence of negligence, the circumstances of the accident indicate that it probably would not have occurred had the defendant not been negligent. The Court then proceeds to interpret Illinois law on the subject as it relates to two very important aspects of res ipsa loquitur: the so-called "requirement" that the instrumentality that causes the injury be under "exclusive control" of the defendant and the procedural effect that the application of the doctrine should have.

As to the issue of "control", the court adopts what has been the modern trend: to minimize the importance of this factor -- or to eliminate it entirely -- from the analysis. The notion that the object that causes an injury has to be under the exclusive control of the defendant can't be read strictly because doing so would limit the application of the doctrine too much. Courts have never required a strict application of this factor. At most, it can be said that the control must refer to control at the time of the possible negligence (not at the time of the accident -- which is the interpretation the defendants always argue since usually it is the plaintiff who is using the product when the accident happens).

Coming just short of saying the question of control is irrelevant, the court states the following: "The black-letter statement of the doctrine is that the thing that caused the plaintiff’s injury must at the time of the accident have been under the defendant’s control. But as the Prosser treatise points out. . . this formulation (like so many blackletter statements of rules) should not be taken literally, as it implies that the doctrine could not be invoked in a case in which the brakes on a new car fail and the manufacturer is sued. . . ." It should be noted that the Restatement 3d of Torts eliminated the element of control from its "blackletter" description of the doctrine. 

As to the question of the effect of the application of the doctrine in Illinois, the court had this to say: "The parties manage to avoid telling us what the effect of the doctrine is in a lawsuit governed by Illinois law. Does the doctrine merely allow the trier of fact to infer negligence—is it in other words just an illustration of the use of circumstantial evidence to create a prima facie case? Or does it create a presumption of negligence that entitles the plaintiff to judgment unless the defendant presents evidence in rebuttal, or that even shifts the burden of persuasion to the defendant? In Illinois, as in most states, . . . it is just a type of circumstantial evidence (which raises the question, why treat it as a separate doctrine?)."

 Note the little challenge thrown in there by the judge... can we really explain why we treat RIL as a "separate doctrine" if all it is is a form or circumstantial evidence with a fancy name? The case is Aguirre v. Turner Construction Company.

Interesting (and confusing) Illinois Court of Appeals opinion about medical malpractice

As we all know, ordinarily the plaintiff in a medical malpractice action must introduce expert testimony to prove the standard of care and that the defendant breached it. However, there may be circumstances where a plaintiff could support the claim without an expert. When I ask my students to give me examples where this could be justified, someone invariably (usually the first example that comes to mind) says “when they leave something in the patient’s body during surgery.” Why? Because "everyone knows" that is not supposed to happen.

 Interestingly, a couple of weeks ago, the Appellate Court of Illinois (2nd District) decided a new case involving this exact situation. Unfortunately, the decision displays a significant confusion regarding some basic tort law principles. The case is called Forsberg v. Edward Hospital and it is available here.

 The facts of the case are very simple. Patient goes in for surgery. Patient comes out of surgery. Patient later discovers a sponge was left inside her body. Patient sues. Simple. The hospital settled, but the surgeon decided to take the case to trial. The doctor then moved for summary judgment, arguing that the plaintiff did not have any expert evidence to support her argument of breach, that he had acted with due care and that he could not be held liable for the conduct of the nurses who were in fact in charge of keeping track of the surgical sponges.

 In response to the motion for summary judgment, the plaintiff argued that she did not need expert testimony to prove negligence because it is “common knowledge” that leaving a sponge inside a surgical patient's body is a breach of the standard of care and that the surgeon can be vicariously liable for the negligence of a nurse (even if the nurse is not the surgeon's employee) if the nurse was subject to his control and supervision. The trial court granted the motion to dismiss and the court of appeals affirmed.

In support of its decision, however, the appellate court used a very confusing analysis and missed the chance to do one of two things: either to clarify what has become an unnecessarily confusing area of the law or to break new ground and establish new law. There are two interesting questions here: whether the plaintiff’s argument based on “common knowledge” is enough to support her claim of breach of the standard of care and whether a surgeon can be vicariously liable for the conduct of a nurse under his supervision if she is not his employee.

The problem with the first issue is that the court confuses the concept of an argument sufficient to establish a prima facie case and the process of proving that argument. The court correctly starts by pointing out that expert testimony is not required if the conduct is such that a layman can safely conclude it does not meet the medical profession’s standard of care and that this applies in a case where the conduct in question involves leaving a sponge inside a patient. From there, however, the court goes on to say that “the fact that the sponge was left in the plaintiff's body established a prima facie case of medical negligence and the burden shifted to the hospital to explain the nurses' failure to keep an accurate sponge count.”

 This sentence can be interpreted in two different ways – both of which are problematic.

First, it can be interpreted to mean that the fact that the sponge was left in the body is sufficient to conclude that the plaintiff has enough support to survive a motion to dismiss. This means that the argument is enough to suggest that reasonable people might disagree as to whether the conduct of the defendant was negligent and that, thus, the case should go to the jury for the jury to decide if in fact the defendant was negligent.

Interpreted this way, the second part of the statement is wrong because the fact that the prima facie case is established does not shift the burden of proof. The plaintiff still has to prove that the defendant was, in fact, negligent. And, in this case, the plaintiff could not do that. She simply did not have any evidence to suggest that it was the doctor who had not acted with due care.

On the other hand, the sentence could be interpreted to mean that the fact that the sponge was left in the body is sufficient to prove someone’s negligence – that the plaintiff does not have to present evidence of conduct to the jury at all. This interpretation might justify the shifting of the burden of proof, but it would make sense only in a jurisdiction that has adopted that effect to the application of the doctrine of res ipsa loquitur which the court did not mention at all.

Should the court have invoked the res ipsa doctrine? 

On the one hand, maybe you can say that the presence of the sponge establishes that someone was negligent, but even then, that fact alone does not necessarily mean that it was the doctor who was negligent.   On the other hand, the court could adopt the analysis developed by the California Supreme Court in the famous case Ybarra v. Spangard back in 1944, which recognized the possibility of invoking the res ipsa loquitur doctrine in a case in which a surgery patient could not identify the person who probably caused him an injury nor the conduct that caused the injury.  Having said that, though, for reasons explained below, even if the court had adopted this approach, I think the result would have been the same.

The court in Forsberg, however, does not talk about any of this which makes it difficult to figure out the basis of its analysis or whether it simply confuses the concept of the prima facie case and the way in which a plaintiff proves the prima facie case. 

Now, in all fairness, it must be stated that the court did not make these mistakes on its own. It cites a number of old cases that apparently have been dragging this unnecessarily convoluted type of analysis along for a number of years. It is unfortunate, though, that the court did not break away from that analysis and take a more logical view of the issues.

The court says that its decision is that the "common knowledge doctrine" does not apply in this case. The problem is that, even after reading the case, what the "common knowledge doctrine" holds is still a mystery. It is not clear if it is a doctrine that determines whether a plaintiff needs to present expert evidence or whether the plaintiff supports an argument in order to survive a motion to dismiss or whether the plaintiff proves her argument. (Quite frankly, I am not sure why it is called a "doctrine" at all, but that is another issue.) 

I don't think the big issue in this case was about common knowledge; it was about proof.  The court should have forgotten about the so-called "common knowledge doctrine" - whatever that means - and should have focused on the possible application of the principles of res ipsa loquitur.

The case was not about common knowledge because I think the court would have been justified in finding that the plaintiff should not have to present an expert to testify as to whether leaving a foreign object in her body constitutes a breach of the medical profession’s standard of care.

I think the case was about proof and res ipsa because, even if it is fair to conclude that the fact that the sponge was left in the patient's body showed that someone was negligent, it does not show that it was the surgeon who was negligent.  This, in my mind, opens the door to the use of res ipsa.

On the other hand, given that the surgeon presented uncontroverted evidence that he had used all reasonable care, that door was closed pretty quickly.  Under those circumstances, the plaintiff simply was unable to establish that there was a genuine issue of material fact as to the surgeon's negligence.

In the end, the case can be reduced to this: the plaintiff was arguing that the fact that the sponge was left in the body creates a genuine issue of material fact as to whether the surgeon acted negligently. Unfortunately for her, though, given that the surgeon had undisputed evidence that he acted with due care, absent evidence of negligent conduct on the part of the surgeon, the plaintiff's argument was not sufficient to survive the motion for summary judgment. That is all the court needed to say about that. All those references to the "common knowledge doctrine" and the shifting of the burden of proof were unnecessary.

But the problems do not end there. Remember that there was a second issue here.

Given that the plaintiff could not prove the doctor’s own negligence, she made a second argument: that he should be vicariously liable for the conduct of those who were allegedly negligent - the nurses under his supervision.

Again, on this second issue the court's conclusion is also very confusing. It is important to remember that vicarious liability refers to circumstances where someone can be liable for someone else's conduct even if the person who is ultimately liable was not negligent at all. The most common example of this is a case where an employer is liable for the conduct of an employee. The basis for liability is not the employer's conduct but the relationship with the person who was negligent. The employer's liability is not based on anything that the employer did or did not do, it is just based on the fact that he or she is the employer and that the employee was negligent while in the course of employment.

In the Forsberg case, the surgeon argued that he was not negligent - and thus could not be liable for his own negligence - and that he was not the nurses' employer - and thus could not be vicariously liable for their negligence.

The only problem with this argument is that vicarious liability is not limited to the employer/employee relationship. Many jurisdictions have held that a surgeon can be vicariously liable for the negligence of an assisting nurse not in his employ if the negligent act is done while the nurse is under the surgeon's direct control or supervision. Often courts refer to the application of vicarious liability to a situation like this as the doctrine of the "captain of the ship."

The plaintiff here argued that the court should apply this doctrine but the court rejected the argument. Citing Foster v. Englewood Hospital Ass'n, 19 Ill. App. 3d 1055 (1974), the court concluded as follows: "The import of Foster here is plain. If defendant is not liable for his own negligence, then he is not vicariously liable for the nursing staff's negligence. Instead of extending vicarious liability via the "captain of the ship" doctrine, Foster held that a surgeon may not be held liable for the nursing staff's negligence without proof that the surgeon was independently negligent in relying on the nursing staff."

This statement does not make any sense. The import of Foster is plain, but it is not that. The import of Foster is that the captain of the ship doctrine does not exist in Illinois; period.

The captain of the ship doctrine allows for the imposition of vicarious liability. This would allow the plaintiff to support a claim against the defendant even if the defendant was not negligent. To say that the plaintiff has to prove the surgeon's negligence in order for the captain of the ship doctrine to apply does not make sense because if the plaintiff has evidence of the negligence of the defendant, the plaintiff does not have any need to argue the captain of the ship doctrine in the first place.

What the court is saying here is that a claim against a surgeon must be based on the surgeon's negligent conduct. It can't be based on the negligence of a nurse, unless the surgeon is the nurse's employer. Again, that is simple enough and all the court needed to say about that.

A more interesting question and the one reason the Illinois Supreme Court may want to consider an appeal is whether Illinois should adopt the captain of the ship doctrine. Assume the doctor here exercised all due care but the nurses did not. Should the doctor be liable? That is the question.