 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mireles v. Broderick1/29/1992
HARTZ, Judge.
The Plaintiff, Mary Ann Mireles, appeals from an adverse verdict in a medical malpractice case. She contends that the district court committed reversible error by refusing to give the jury her tendered instruction on res ipsa loquitur. The Defendant, Dr. Thomas Broderick, argues that (1) the doctrine of res ipsa loquitur was inapplicable because (a) a claim under res ipsa loquitur should not be based, as it was here, on expert testimony, (b) Plaintiff also relied upon a specific theory of how the accident occurred, and (c) Plaintiff did not establish the exclusive control by Defendant that is a necessary predicate for application of res ipsa loquitur; and (2) the res ipsa loquitur instruction tendered by Plaintiff was incorrect; and (3) if failure to give the tendered instruction to the jury was error, the error was harmless. We affirm on the second ground; the instruction tendered by Plaintiff was not a proper res ipsa loquitur instruction and therefore the district court
had no duty to give the instruction. We need not address Defendant's other contentions.
I. Introduction
For the purpose of deciding this appeal we need provide only a brief summary of the evidence at trial. We view the evidence in the light most favorable to Plaintiff's res ipsa loquitur theory, because the district court should reject an otherwise proper instruction only if there is insufficient evidence to support the factual predicate of the instruction. See .
Defendant served as the anesthesiologist when a bilateral mastectomy was performed on Plaintiff. Sometime after the surgery (the parties disputed how soon after surgery) Plaintiff developed symptoms that were subsequently diagnosed as ulnar neuropathy, which caused the degeneration of the fourth and fifth fingers of her right hand. Plaintiff's expert witness, Dr. Randall Waring, testified that the ulnar nerve, which passes by the elbow, can be injured during surgery if it is subjected to excessive stretching or compression that compromises the blood supply to the nerve. Therefore, he testified, an anesthesiologist should properly position and cushion the arm to avoid such pressure and should monitor the arm during surgery to be sure that proper positioning and cushioning is maintained. He described in detail the proper positioning and cushioning and the monitoring that should be conducted. (For ease of reference, we shall use the term "Waring protective procedures" to label the positioning, cushioning, and monitoring described by Dr. Waring.) He also testified that the injury to Plaintiff's ulnar nerve must have occurred during the surgery and that such an injury to the nerve cannot occur during the surgery and that such an injury to the nerve cannot occur during surgery unless the anesthesiologist fails to follow Waring protective procedures. Such a failure, in his view, constitutes negligent care. In response, Defendant put on evidence that he had properly positioned and cushioned Plaintiff's arm during surgery, the injury could have occurred while Plaintiff was sedated by heavy pain medication after surgery, and injury to the ulnar nerve can appear after surgery despite the exercise of proper care by those performing the surgery.
Plaintiff tendered the following instruction:
In support of her claim that Dr. Broderick was negligent, Plaintiff relies in part upon the doctrine of "res ipsa loquitor " which is a Latin phrase and means "the thing speaks for itself". To rely on this doctrine, Plaintiff has the burden of proving each of the following propositions:
1. That the injury to Plaintiff was proximately caused by ina
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|