 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Grayson v. State9/15/1992
id you not have that kind, plaintiff not have that kind of testimony, that you had the testimony that you did have was distinctly and significantly less than that. So that the demurrers to the evidence will be sustained.
We agree with the trial court that Dr. Williams' statement does not suffice as an admission of either a breach of duty or proximate cause.
In Appellants' second proposition of error, it is alleged that their evidence was sufficient to satisfy all elements of the doctrine of res ipsa loquitur, pursuant to 76 O.S. 1991 § 21 and Oklahoma case law prior to codification of § 21. Section 21 provides:
§ 21. Presumption of negligence
In any action arising from negligence in the rendering of medical care, a presumption of negligence shall arise if the following foundation facts are first established:
1. The plaintiff sustained any injury ;2. Said injury was proximately caused by an instrumentality solely within the control of the defendant or defendants; and 3. Such injury does not ordinarily occur under the circumstances absent negligence on the part of the defendant. If any such fact, in the discretion of the court, requires a degree of knowledge or skill not possessed by the average person, then in that event such fact must be established by expert testimony.
Dr. Miller-Hardy's testimony that she had no opinion as to whether a drug overdose is something that occurs absent negligence was the only evidence presented by Appellants regarding the third foundational fact required under § 21, and it is clearly insufficient to establish it. See Sisson by and through Allen v. Elkins, 801 P.2d 722 (Okl. 1990). An inference of negligence arises only when all foundational facts have been established. Sisson, supra.
Appellee Hospital asserted below and contends in its response to the petition in error and in its appellate brief that it is immune from liability under the Governmental Tort Claims Act, 51 O.S. 1991 § 151 et seq. (the Act), specifically §§ 152(5), 155(5) and 155(28). In view of the above, it is not necessary to consider this contention.
We conclude that the trial court correctly sustained Appellees' demurrers to the evidence and correctly overruled Appellants' motion for new trial.
AFFIRMED.
ADAMS, P.J., and JONES, J., concur.
Page 1 2 3 4 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|