The Missouri Supreme Court held that an expert can testify in a res ipsa loquitur-based medical malpractice suit to show that no injury would have occurred without defendant's negligence. The case, Sides v. St. Anthony's Medical Center, was a case of first impression on the issue.[2] Previously, Missouri appellate courts disallowed plaintiffs from using expert witnesses when proceeding under a res ipsa loquitur theory in medical malpractice cases. Courts instead required that before a res ipsa theory could be forwarded that "laypersons…know, based on their common knowledge or experience, that the cause of plaintiff's injury does not ordinarily exist but for negligence of the one in control,"[3]
Physicians performed a lumbar laminectomy with spinal fusion on Janice Sides, the appellant in this case, in June 2003 at respondent St. Anthony's Medical Center. Sides alleged that she became infected with Escherichia Coli ("E. Coli") during the procedure. She filed suit under a res ipsa loquitur theory claiming that an infection of E. Coli at the site of surgery does not occur without negligence. The trial court dismissed her petition stating that Missouri case law precludes a plaintiff from using expert testimony to support res ipsa loquitur in a medical malpractice case. The Missouri Court of Appeals, Eastern District, affirmed the trial court's ruling on the same grounds.
In overturning the Court of Appeals, the Missouri Supreme Court adopted the position asserted by Restatement (Second) of Torts § 328D (1965),[5] joining the majority of jurisdictions taking this view. As a result, a plaintiff in Missouri can now employ an expert witness in a medical malpractice claim proceeding under a theory of res ipsa loquitur.
II. Legal Background and Instant Decision
In Missouri, the common law doctrine of res ipsa loquitur is applicable when "(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence."[6] The Missouri Supreme Court has only once addressed the contours of the doctrine as applied to the medical malpractice field. In Hasemeier v. Smith,[7] the defendant doctor notified the plaintiff and his pregnant wife that their fetus was dead in her womb and needed to be surgically removed immediately.[8] During the operation, the doctor discovered that the fetus was alive and delivered a healthy baby.[9] However, the wife did not survive the operation.[10] The husband sued, alleging the physician was negligent under a theory of res ipsa loquitur.[11] The plaintiff did not attempt to use an expert witness; instead, he simply averred that because the doctor was incorrect about the condition of the fetus, the surgery was unnecessary.[12] Thus, the plaintiff maintained that because of the doctor's mistake, his wife died. The Supreme Court held that the plaintiff could not continue under a theory of res ipsa loquitur because the doctrine requires that "laymen know, based on their common knowledge or experience,"[13] that the death of the woman would not have occurred but for negligence on the part of the doctor. The Supreme Court found that inference beyond the knowledge of laymen.[14]
Building upon Hasemeier, other lower Missouri courts interpreted the case to mean that "a plaintiff cannot use expert testimony to establish a res ipsa loquitur case in a medical malpractice action."[15] In the present case, the Supreme Court rejected these interpretations as incorrect because the plaintiff in Hasemeier never attempted to offer expert testimony.[16] Instead, the Court reinterprets Hasemeier and holds that the case stands for the principle that "a jury of lay persons could not find negligence under a res ipsa loquitur theory where the medical issue is not one within their understanding."[17]
Therefore, the Supreme Court held, if an expert witness can "bridge the gap between the jury's common knowledge and the complex subject matter that is 'common' only to experts in a designated field," then there is no reason to disallow such testimony.[18] With the use of such expert testimony, "jurors can be made to understand the higher level of common knowledge and, after assessing the credibility of both plaintiff's and defendant's experts, can decide whether to infer negligence from the evidence."[19] Explicitly laying out how this holding affects the doctrine of res ipsa loquitur, the Supreme Court elaborated:
Where a plaintiff is unable to show which specific act of negligence of the defendants caused his or her injury, but is able to show that all the potential causes are within the control or right to control of defendants, and that they have greater access to knowledge about the cause of the injury than does plaintiff, and a medical expert testifies that such injury does not occur in the absence of negligence of the defendants, then a prima facie case for medical malpractice has been made.[20]
III. Commentary
By adopting this stance, the Missouri Supreme Court has come in line with the vast majority of states in the United States: 28 of 36 states that have explicitly ruled on the issue now allow for expert testimony in res ipsa loquitur medical malpractice cases.[21] The rationale is persuasive. A plaintiff in a medical malpractice action rarely has any knowledge regarding the goings-on of a medical procedure; as a patient, they are routinely unconscious. The doctors and nurses are charged with the patient's physical well-being and entirely control the instrumentalities used. These conditions create the classic res ipsa loquitur scenario, except that the subject matter is arguably outside the scope of the layman's knowledge. The foundation of the doctrine is still applicable in a medical malpractice case. There is lack of proof of direct causation but substantial circumstantial evidence because the medical practitioners were in control of the patient and their tools. The scope of knowledge of the common juror, before expert testimony, is not a convincing determining factor as to when the doctrine should be allowed.
- David R. Swaney
[1] 258 S.W.3d 811 (Mo. 2008) (en banc).
[2] Id. at 813.
[3] Spears v. Capital Region Med. Ctr., Inc., 86 S.W.3d 58, 62 (Mo. Ct. App. 2002); see also Redfield v. Beverly Health & Rehab. Servs., Inc., 42 S.W.3d 703, 714 (Mo. Ct. App. 2001); Seippel-Cress v. Lackamp, 23 S.W.3d 660, 667 (Mo. Ct. App. 2000); Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo. Ct. App. 2000). The instant decision explicitly overrules these four decisions. Sides, at 811.
[4] Sides, 258 S.W.3d at 813-24.
[5] "[E]xpert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion." Restatement of Torts (Second), § 328D, cmt. d. (1965).
[6] Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. 1983) (en banc).
[7] 361 S.W.2d 697 (Mo. 1962) (en banc).
[8] Id. at 699.
[9] Id.
[10] Sides, 258 S.W.3d at 814.
[11] Hasemeier,361 S.W.2d at 699.
[12] Id.
[13]Id. at 701.
[14] Id. at 702.
[15] Spears v. Capital Region Med. Ctr., Inc., 86 S.W.3d 58, 62 (Mo. App. 2002), overruled by Sides v. Anthony Med. Ctr., 258 S.W.3d 811 (Mo. 2008) (en banc).; see also supra n. 2.
[16] Sides, 258 S.W.3d at 816.
[17]Id. at 815.
[18] Id. at 819 (citing Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 94-95 (Tenn. 1999)).
[19] Sides, at 819 (citing Seavers, at 94-95).
[20] Sides, at 819.
[21] Id. at 816.
