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Gubbins v. Hurson10/14/2005
other justification for denying appellants' request for a res ipsa loquitur instruction. Appellees argue that the doctrine is intended merely to assist the plaintiff who cannot explain the events causing injury, which was unnecessary here, where specific allegations of negligence were made. The argument is not well taken. "This court permits the plaintiff in a proper case to rely upon both res ipsa loquitur and proof of specific acts of negligence. . . . Though some evidence may tend to show the specific cause of an accident, a plaintiff should not be deprived of the benefit of the doctrine if after his case in chief is in, the true cause is still left in doubt or is not clearly shown." Quin, 407 A.2d at 582-83 (internal citations omitted). Res ipsa loquitur becomes irrelevant only when the manner in which the defendant was allegedly negligent is "completely elucidated," Otis Elevator Co. v. Henderson, 514 A.2d 784, 786 (D.C. 1986) (quoting Loketch v. Capital Transit Co., 101 U.S. App. D.C. 287, 288, 248 F.2d 609, 610 (1957)), and "there is nothing left for the jury to infer regarding the cause of the accident." Sullivan v. Snyder, 374 A.2d 866, 867 (D.C. 1977).
Finally, while Dr. Hurson, Dr. Kim and the Hospital staff supporting them had different roles in the operating room, they were working together to carry out Gubbins's operation, during which she was in their exclusive control. "It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage. . . . The doctrine may apply against two defendants if there is joint control and in a proper case it is for the jury to say whether either or both had control." Greet v. Otis Elevator Co., 187 A.2d 896, 898 (D.C. 22 1963) (internal quotation marks and citation omitted).
We conclude that the trial court erred in rejecting appellants' request for a res ipsa loquitur instruction. As with the erroneous admission of the expert opinion testimony of Dr. Kelly, we need not assess the impact of the error in isolation. Viewing them in combination, we cannot find the two errors to have been harmless. See Nelson, 694 A.2d at 902 (holding that trial court's erroneous refusal to instruct jury on one of plaintiff's theories of liability in medical malpractice case was substantially prejudicial). If the jury had not heard Dr. Kelly's testimony, which uniquely and effectively undermined appellants' theory of negligent causation, and if it then had been instructed on res ipsa loquitur, we think it might well have found some or all of the defendants liable, even if it still might have rejected appellants' specific claims of negligence; moreover, had the court's two rulings been different, we think the jury might well have considered appellants' specific negligence claims against Dr. Kim and Dr. Hurson in a different and more favorable light.
Accordingly, we reverse the judgment of the trial court and remand for a new trial.
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