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Gubbins v. Hurson10/14/2005
inion that the event will not usually occur if due care is used"). Otherwise put, "the evidence must make plaintiff's theory [of negligent causation] reasonably probable, not merely possible, and more probable than any other theory based on the evidence." Quin, 407 A.2d at 585.
In the case at bar, Drs. Severino and Battle testified that if the defendants had adhered to the standard of care in the operating room, while Gubbins was under their exclusive control, she would not have suffered nerve damage. With this expert opinion testimony, appellants satisfied the threshold requirement for obtaining an instruction on res ipsa loquitur. We explained in Quin, however, that while such expert testimony is necessary, it is not always sufficient to entitle the plaintiff to invoke the doctrine. When the parties present "conflicting medical testimony" that "indicates a lack of consensus in the medical field as to the cause of [the injury ] following [the medical treatment], despite agreement that such [a result] is a rarity," the trial court properly may refuse the instruction. Id. at 584. The plaintiff has a right to a res ipsa loquitur instruction only when "it is a matter of common knowledge among laymen or medical men or both that the injury would not have occurred without negligence." Id. (quoting Salgo v. Stanford Univ. Bd. of Trs., 317 P.2d 170 (1957)). Thus we have said that although conflicting expert testimony does not in itself render the doctrine inapplicable, a trial court properly may refuse to instruct on res ipsa loquitur if it finds that "two equally plausible conclusions" as to the presence or absence of negligence are deducible from the testimony in toto. Wash. Metro. Area Transit Auth. v. L'Enfant Plaza Props., Inc., 448 A.2d 864, 868 (D.C. 1982); Quin, 407 A.2d at 584 (equally plausible that hemorrhaging arose from natural causes as that it resulted from improper ligation by surgeons; held, instruction on res ipsa loquitur was properly denied); see also Foster v. George Washington Univ. Med. Ctr., 738 A.2d 791, 798 (D.C. 1999).
The disagreements among the expert witnesses in this case over appellants' specific theories of negligence did not establish a lack of medical consensus on the question whether Gubbins's nerve injury most probably was caused by negligence of some kind on the part of the physicians attending her in the operating room. Other than Dr. Kelly, whose testimony on this question must be disregarded because it should not have been admitted over appellants' objection, no expert disputed the testimony of Drs. Severino and Battle that the injury Gubbins received ordinarily does not occur absent medical negligence. Indeed, except for Dr. Anderson, no defense expert was prepared to suggest a non-negligent cause of the injury, and Dr. Anderson's suggestion of such a cause was equivocal: his belief that Gubbins had an adverse reaction to her anesthetic was consistent with the theory of negligence advanced by Dr. Severino, which he never disputed, and ultimately the "hypersensitivity" Dr. Anderson mentioned was no more than an alternative possibility. It was a possibility, moreover, that was not independently substantiated; even though such hypersensitivity was admittedly rare, the defense presented no test results or other evidence that Gubbins in fact was unusually allergic or sensitive to the anesthetic used in her operation. In our view, the undeveloped evidence that Gubbins's nerve injury could have been an idiosyncratic, unpredictable and uncommon drug reaction fell short of rebutting the expert testimony that such an injury ordinarily does not occur in the absence of negligence. In other words, no "equally plausible" alternative to negligence was shown.
We see no
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