res ipsa doctrine in Pennsylvania

2023In discussing res ipsa loquitur the court referenced its plurality opinion in Toogood v. Rogal et al., 824 A.2d 1140 (Pa. 2003) which discussed whether the res ipsa doctrine could relieve a plaintiff’s burden of producing expert testimony to demonstrate negligence in a case that was medically complex.

2003Similarly, on page 983 of its opinion, the majority indicates that the disciplinary action taken against Dr. Austin by the American Association of Neurological Surgeons (AANS) involved a medical malpractice case that “bordered on a res ipsa claim, as does his testimony here.” Id. at 983. ¶ 6 I respectfully disagree with the majority’s characterization of res ipsa as a “claim.” “Res ipsa loquitur is neither a doctrine of substantive law nor a theory of recovery; rather, it is a rule of circumstantial evidence.” Toogood v. Rogal, 573 Pa. 245 , 824 A.2d 1140, 1146 (2003).

2020Fessenden, 97 A.3d at 1230 . -5- J-A11014-19 Although there was no item left behind in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), a res ipsa instruction was similarly warranted.

2020Fessenden, 97 A.3d at 1230 . -5- J-A11014-19 Although there was no item left behind in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), a res ipsa instruction was similarly warranted.

2003See also Checchio v. Frankford Hasp., 717 A.2d 1058, 1060 (Pa.Super.1998) (“Where the alleged negligence is medical in nature, the plaintiff must present evidence from an expert ‘who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.’ ” (citation omitted)). ¶ 8 The narrow exception to the expert testimony requirement is conceptualized as the doctrine of res ipsa in which “the matter is so simple or the lack of skill or care so obvious

2003Finally, the third prong of the res ipsa test was plainly satisfied because, as this Court recognized in Hightower-Warren , it is “within the scope of [a physician’s] duty of care to protect his patient against preventable injuries which could reasonably occur during the performance of surgery,” and the same holds true for the medical procedure at issue here. 698 A.2d at 55 n. 7 (alterations in original) (citation omitted).

2021Hence causation is also amatter generally requiring expert testimony. "15 An exception to this requirement only exists "'where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non- professional persons...'also conceptualized as the doctrine of res ipsa /oquitor." 16 Res ipsa /oquitor is not alegal doctrine or theory of recovery, but rather arule of circumstantial evidence that allows ajury to infer negligence without direct evidence of the elements of negligence. 17 Three conditions must be met before res ipsa /oq

2006See generally Moure v. Raeuchle, 529 Pa. 394, 402 , 604 A.2d 1003, 1007 (1992) (explaining that, in reviewing a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the verdict winner, affording it the benefit of every reasonable doubt and resolving conflicts in testimony in its favor).

2006See generally Moure v. Raeuchle, 529 Pa. 394, 402 , 604 A.2d 1003, 1007 (1992) (explaining that, in reviewing a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the verdict winner, affording it the benefit of every reasonable doubt and resolving conflicts in testimony in its favor).

2005See Gilbert v. Korvette’s Inc., 457 Pa. 602 , 327 A.2d 94 (1974).

2005See Gilbert v. Korvette’s Inc., 457 Pa. 602 , 327 A.2d 94 (1974).

2003Prong (c) of the Toogood test is similar to the second prong of the traditional res ipsa test set forth in section 328D(1)(b) of the Restatement (Second) of Torts, which states that an inference of negligence is established when, inter alia, "other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence." [10] See Grandelli, *987 777 A.2d at 1147 (emphasis added).

2003Magette v. Goodman, 771 A.2d 775, 779 (Pa.Super.2001).

2003Magette v. Goodman, 771 A.2d 775, 779 (Pa.Super.2001).

2003These facts, in my view, clearly satisfy the first prong of the res ipsa test because it is generally understood that in the absence of negligence, such an injection does not ordinarily puncture a lung and cause it to collapse. 1 See Killingsworth v. Poon, 167 Ga.App. 653 , 307 S.E.2d 123, 126 (1983) (“it is widely. known ... that a subcutaneous injection ostensibly given only for the relief of muscular pain should not, if administered correctly, result in the puncture of internal organs.”); see also Bardessono v. Michels, 3 Cal.3d 780 , 91 Cal.Rptr. 760 , 478 P.2d 480, 486-87 (1971) (“Needle

2003These facts, in my view, clearly satisfy the first prong of the res ipsa test because it is generally understood that in the absence of negligence, such an injection does not ordinarily puncture a lung and cause it to collapse. 1 See Killingsworth v. Poon, 167 Ga.App. 653 , 307 S.E.2d 123, 126 (1983) (“it is widely. known ... that a subcutaneous injection ostensibly given only for the relief of muscular pain should not, if administered correctly, result in the puncture of internal organs.”); see also Bardessono v. Michels, 3 Cal.3d 780 , 91 Cal.Rptr. 760 , 478 P.2d 480, 486-87 (1971) (“Needle

2003These facts, in my view, clearly satisfy the first prong of the res ipsa test because it is generally understood that in the absence of negligence, such an injection does not ordinarily puncture a lung and cause it to collapse. 1 See Killingsworth v. Poon, 167 Ga.App. 653 , 307 S.E.2d 123, 126 (1983) (“it is widely. known ... that a subcutaneous injection ostensibly given only for the relief of muscular pain should not, if administered correctly, result in the puncture of internal organs.”); see also Bardessono v. Michels, 3 Cal.3d 780 , 91 Cal.Rptr. 760 , 478 P.2d 480, 486-87 (1971) (“Needle

2003These facts, in my view, clearly satisfy the first prong of the res ipsa test because it is generally understood that in the absence of negligence, such an injection does not ordinarily puncture a lung and cause it to collapse. 1 See Killingsworth v. Poon, 167 Ga.App. 653 , 307 S.E.2d 123, 126 (1983) (“it is widely. known ... that a subcutaneous injection ostensibly given only for the relief of muscular pain should not, if administered correctly, result in the puncture of internal organs.”); see also Bardessono v. Michels, 3 Cal.3d 780 , 91 Cal.Rptr. 760 , 478 P.2d 480, 486-87 (1971) (“Needle

2003See also Checchio v. Frankford Hasp., 717 A.2d 1058, 1060 (Pa.Super.1998) (“Where the alleged negligence is medical in nature, the plaintiff must present evidence from an expert ‘who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.’ ” (citation omitted)). ¶ 8 The narrow exception to the expert testimony requirement is conceptualized as the doctrine of res ipsa in which “the matter is so simple or the lack of skill or care so obvious

2003See also Checchio v. Frankford Hasp., 717 A.2d 1058, 1060 (Pa.Super.1998) (“Where the alleged negligence is medical in nature, the plaintiff must present evidence from an expert ‘who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.’ ” (citation omitted)). ¶ 8 The narrow exception to the expert testimony requirement is conceptualized as the doctrine of res ipsa in which “the matter is so simple or the lack of skill or care so obvious