News: A patient underwent hip replacement surgery, after which he exhibited femoral nerve palsy. Tests confirmed permanent nerve damage. The patient filed a malpractice action, alleging the permanent nerve damage must have been caused by the physician’s negligence.
A trial court initially dismissed the malpractice action because the patient could not specifically identify the negligent acts. However, the patient appealed, and the appellate court reversed the dismissal. It agreed that absent negligence, permanent nerve damage does not occur. The patient was permitted to bring his action.
Background: In October 2016, an adult male underwent hip replacement surgery. After the surgery, the patient exhibited femoral nerve palsy. Testing confirmed nerve damage in his quadriceps, including severe left femoral neuropathy specific to the branches to the vastus lateralis and rectus femoris muscles. A lesion appeared complete with no evidence of voluntary motor unit potential activation.
In September 2018, the patient filed a medical malpractice suit. The patient did not name any specific wrongdoing by the surgical team, but still claimed the fact he suffered permanent nerve damage means medical malpractice must have occurred. The discovery process did not reveal any provider mistakes. The defendant physician and surgical team all denied liability and claimed they performed the surgery in accordance with the applicable standards of care.
The defendants filed a motion to dismiss the case based on the patient’s inability to demonstrate any breach of the standard of care. As the plaintiff, a patient is required to provide evidence concerning each element to prove malpractice, including the provider’s actions breached the standard of care. The patient was under anesthesia during the procedure, and no written evidence or testimony revealed any error. Since the patient could not demonstrate an action that fell below the standard of care, the court dismissed the case.
The patient appealed the dismissal, and the appellate court reversed. The primary basis for the appeal was a legal doctrine, known as “res ipsa loquitur,” that the patient raised, but the trial court rejected. The basis of this doctrine is that when an injury cannot happen without negligence, there must be negligence if an injury occurred. Thus, even if a patient — or anyone else — did not observe the act that caused a harm, the act still must have happened if the patient suffered the harm. Under this doctrine, a patient is relieved of the need to connect the specific act that caused the harm as long as the patient puts forth sufficient evidence to demonstrate such an injury.
The appellate court agreed with the patient. In this case, the patient’s expert testified permanent nerve damage does not occur outside negligence. Specifically, the patient’s expert testified he had performed hundreds of hip replacement surgeries and had never encountered injuries like the patient sustained. In his opinion, nerve injuries could occur during non-negligent hip replacement surgery, but they would not be permanent. Moreover, the expert had never seen nor read about the types of injuries the patient suffered occurring, absent negligence. This testimony was enough to reverse the dismissal of the patient’s case and permit the case to move forward.
The court analogized the case to one where a surgical sponge is left inside a patient. In that case, it is obvious someone was negligent, even if the surgical team and records report that no errors occurred. Here, the patient’s expert established the nerve damage was like the surgical sponge: Neither a forgotten surgical sponge nor permanent nerve damage happen without negligence. In both cases, the injury speaks for itself, and is sufficient to support a jury trial on the issue of negligence.
The court also spoke on the issue of the applicable standard of care when res ipsa loquitor is invoked. Under this doctrine, the patient did not need to establish the applicable standard of care. The injury established the defendants had a duty to exercise ordinary care and not injure the patient by violating that standard.
The also court ruled on an additional matter. A surgical technician argued she should be dismissed from the case because she acted entirely under the direction of the surgeon; therefore, any error was his for which she could not be liable. The court disagreed, stating if the surgical technician was dismissed, then the surgeon could argue her negligence caused the injury, not the surgeon’s. Therefore, both the surgical technician and the surgeon remained in the case, and it is up to a jury to determine whether liability exists and to apportion it to either, or both, defendants.
What this means to you: This case presents an interesting intersection between the facts and the law. Does the legal system compensate a patient who indisputably suffered a significant, permanent injury when an investigation cannot reveal how the injury occurred? In this case, the patient was unconscious while the defendant care providers were in control of what occurred and what was documented. None of the parties involved testified anything went wrong, yet according to the patient’s expert, the outcome indicates something must have gone wrong. Similarly, none of the medical records indicated actions deviating from the applicable standards of care.
This is where the legal doctrine of res ipsa loquitor becomes involved. This doctrine provides a mechanism for patients in certain egregious situations. First, it relieves the patient of the duty to plead specific actions that caused the harm alleged. The patient also does not have to provide details of the standard of care the defendant allegedly breached. Instead, a patient need only complain the injury does not normally occur unless there is negligence — and the injury actually did occur. Second, at trial, the patient does not have to prove the specific actions that caused harm, or the standard of care that was breached.
Instead, the patient’s case is indirect, as the patient is incapable of proving a direct cause-and-effect relationship. Typically, the patient proves the cause (e.g., a physician performing surgery perforated a bowel) and the effect (e.g., the patient suffered sepsis). Res ipsa loquitor forgoes this relationship because the patient cannot demonstrate the cause, and only knows the effect. In these circumstances, the patient relies heavily on expert testimony because experts can confidently state that such effects only happen when there is a cause, although the cause is unknown. Surgical errors are not uncommon, although they can produce a range of effects from minimal to fatal. Detailed, written reports following surgical procedures are important for physicians to protect themselves when a patient might later allege something went wrong. In the absence of a written report, it is more likely the patient will be able to find fault, whereas a detailed report helps convince a jury the physician adhered to the applicable standard and performed the actions described in the report.
Experts in medical malpractice actions are excessively commonplace — and, in fact, often determine the outcome of the action. In this case, the expert’s testimony was precisely calibrated to support the res ipsa loquitor doctrine. The expert opined the patient’s nerve injury “does not occur absent negligence,” which directly addressed the necessary components under the applicable state law. Since the physician and care providers were in exclusive control of the patient during the surgery, and since the patient suffered permanent injuries during the surgery, the expert testified the actions of the defendants must have caused the injury. The court found this expert was sufficiently qualified to testify on these standards and procedures, and the testimony proved invaluable to reviving the patient’s case on appeal.
REFERENCE
- Decided Oct. 28, 2021, in the Appellate Court of Illinois, Fourth District, Case Number 4-21-0038.
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