518. Medical Malpractice: Res ipsa loquitur

In this case, [name of plaintiff] may prove that [name of defendant]'s negligence caused [his/her] harm if [he/she] proves all of the following:

1. That [name of plaintiff]'s harm ordinarily would not have occurred unless someone was negligent [In deciding this issue, you must consider [only] the testimony of the expert witnesses];

2. That the harm occurred while [name of plaintiff] was under the care and control of [name of defendant]; and

3. That [name of plaintiff]'s voluntary actions did not cause or contribute to the event[s] that harmed [him/her].

If you decide that [name of plaintiff] did not prove one or more of these three things, then [insert one of the following]

[your verdict must be for [name of defendant].]

[you must decide whether [name of defendant] was negligent in light of the other instructions I have read.]

If you decide that [name of plaintiff] proved all of these three things, you may, but are not required to, find that [name of defendant] was negligent or that [name of defendant]'s negligence was a substantial factor in causing [name of plaintiff]'s harm, or both.

You must carefully consider the evidence presented by both [name of plaintiff] and [name of defendant] before you make your decision. You should not decide in favor of [name of plaintiff] unless you believe, after weighing all of the evidence, that it is more likely than not that [name of defendant] was negligent and that [his/her] negligence was a substantial factor in causing [name of plaintiff]'s harm

Directions for Use

The bracketed sentence in element 1 should be read only if expert testimony is introduced. The word "only" within that sentence is to be used nly in those cases where the court has determined that the issue of the defendant's negligence involves matters beyond common knowledge.

In the second paragraph, the first bracketed option is to be used when plaintiff is relying solely on a res ipsa loquitur theory and has introduced no other evidence of defendant's negligence. The second option is to be used when plaintiff has introduced other evidence of defendant's negligence.

"It follows that where part of the facts basic to the application of the doctrine of res ipsa loquitur is established as a matter of law but that others are not, the court should instruct that application of the doctrine by the jury depends only upon the existence of the basic facts not conclusively established." (Rimmele v. Northridge Hospital Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr. 39].)

Sources and Authority

"In California, the doctrine of res ipsa loquitur is defined by statute as 'a presumption affecting the burden of producing evidence.' The presumption arises when the evidence satisfies three conditions: ' "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." ' A presumption affecting the burden of producing evidence 'require[s] the trier of fact to assume the existence of the presumed fact' unless the defendant introduces evidence to the contrary. The presumed fact, in this context, is that 'a proximate cause of the occurrence was some negligent conduct on the part of the defendant. . . .' If the defendant introduces 'evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,' the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence." (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal citations omitted.)

"Stated less mechanically, a plaintiff suing in a personal injury action is entitled to the benefit of res ipsa loquitur when: 'the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the efendant is probably the person who is responsible.' " (Rimmele, supra, 46 Cal.App.3d at p. 129, internal citations omitted.)

Evidence Code section 646(c) provides: If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:

(1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and

(2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.

Under Evidence Code section 604, a presumption affecting the burden of producing evidence "require[s] the trier of fact to assume the existence of the presumed fact" unless the defendant introduces evidence to the contrary. Here, the presumed fact is that "a proximate cause of the occurrence was some negligent conduct on the part of the defendant." (Evid. Code, § 646(c)(1); Brown, supra, 4 Cal.4th at p. 826.)

"The doctrine of res ipsa loquitur is fundamentally a doctrine predicated upon inference deducible from circumstantial evidence." (Hale v. Venuto (1982) 137 Cal.App.3d 910, 918 [187 Cal.Rptr. 357].)

The doctrine "is based on a theory of 'probability' where there is no direct evidence of defendant's conduct, permitting a common sense inference of negligence from the happening of the accident." (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)

"All of the cases hold, in effect, that it must appear, either as a matter of common experience or from evidence in the case, that the accident is of a type which probably would not happen unless someone was egligent." (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442-443 [247 P.2d 344].)

"In determining the applicability of res ipsa loquitur, courts have relied on both expert testimony and common knowledge. The standard of care in a professional negligence case can be proved only by expert testimony unless the conduct required by the particular circumstances is within the common knowledge of the layperson." (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 [54 Cal.Rptr.2d 209], internal citations omitted.)

"Under the doctrine of res ipsa loquitur and this common knowledge exception, it is proper to instruct the jury that it can infer negligence from the happening of the accident itself, if it finds based on common knowledge, the testimony of physicians called as expert witnesses, and all the circumstances, that the injury was more likely than not the result of negligence." (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6 [23 Cal.Rptr.2d 86], internal citation omitted.)

"The fact that a particular injury rarely occurs does not in itself justify an inference of negligence unless some other evidence indicates negligence. To justify res ipsa loquitur instructions, appellant must have produced sufficient evidence to permit the jury to make the necessary decision. He must have presented 'some substantial evidence which, if believed by the jury, would entitle it to draw an inference of negligence from the happening of the accident itself.' " (Blackwell, supra, 46 Cal.App.4th at p. 944, internal citations omitted.)

The purpose of the second "control" requirement is to "link the defendant with the probability, already established, that the accident was negligently caused." (Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d 33].) The control requirement is not absolute. (Zentz, supra, 39 Cal.2d at p. 443.)

"The purpose of [the third] requirement, like that of control by the defendant is to establish that the defendant is the one probably responsible for the accident. The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence. (Newing, supra, 15 Cal.3d at p. 363, internal citations omitted.)

The third condition "should not be confused with the problem of contributory negligence, as to which defendant has the burden of proof. . . . [I]ts purpose, like that of control by the defendant, is merely to ssist the court in determining whether it is more probable than not that the defendant was responsible for the accident." (Zentz, supra, 39 Cal.2d at p. 444.)

Secondary Sources

1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions, §§ 114-118, pp. 818-825

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.32 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 414, Physicians and Other Medical Personnel (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew Bender)

(New September 2003)