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Balfour v. Kimberly Home Health Care7/12/2005
red to eliminate with certainty all other possible causes and inferences, but must show either that the injury can be traced to a specific instrumentality or cause for which the defendant was responsible, or that the defendant was responsible for all reasonably probable causes to which the accident could be attributed. Id. The reason for this is because proof in a res ipsa loquitur case seldom points to a single specific act or omission; typically, it points to several alternative explanations involving negligence without indicating which of them is more probable than the other. Id.
The doctrine of res ipsa loquitur is especially applicable in cases where, as here, a health care provider leaves a foreign object in a patient's body. See, e.g., Weinberg v. Geary, 686 N.E.2d 1298, 1302 (Ind. Ct. App. 1997) (noting that res ipsa loquitur usually only applies in cases of "obvious" medical malpractice, such as cases involving the failure to remove a foreign object from a patient's body). Expert opinion is not necessary to explain that a 4x4 would not have been left in Jacqueline's wound in the absence of negligence. Nevertheless, the trial court concluded that the doctrine does not apply because it found that the Balfours did not show that Olsten had exclusive control over the injuring instrumentality. We cannot agree.
The designated evidence shows that Olsten packed Jacqueline's wound with 4x4's on six occasions from March 12 through March 15, 1999. There is no designated evidence showing that 4x4's were used to pack the wound after March 15. Gilbert testified that she did not count the 4x4's when she packed and unpacked the wound, although she acknowledged that "good custom and practice" would dictate maintaining a count at every dressing change. Appellants' App. at 47. The only time Gilbert counted 4x4's during a dressing change was when, on March 16, she removed the eighteen 4x4's that Dr. Short had placed in the wound on March 15.
The evidence is undisputed that the injuring instrumentality in this case was a 4x4 left in Jacqueline's abdomen. While the Balfours cannot pinpoint the exact date of the alleged negligence, the designated evidence shows that the 4x4 was placed in the wound some time between March 12 and March 16, 1999. Accordingly, the 4x4 left in Jacqueline's wound was present on March 16. On that date, Olsten was the only health care provider in charge of her wound care and Gilbert performed a dressing change. It follows that Olsten was in exclusive control of the injuring instrumentality at that time and it was Gilbert's responsibility to exercise reasonable care in removing all 4x4's from the wound. See Gold, 720 N.E.2d at 1181. We conclude that the Balfours have satisfied the exclusive control element and that the doctrine of res ipsa loquitur applies to create an inference of negligence. See Rector, 809 N.E.2d at 889.
Issue Two: Summary Judgment
The Balfours next contend that the trial court erred when it concluded that there is no genuine issue of material fact regarding Olsten's alleged negligence. In particular, the Balfours maintain that the trial court erred when it concluded that "after the last care provided by Olsten Health Services, there existed no gauze in the open wound of Ms. Balfour." Appellant's App. at 12. That conclusion is based upon Dr. Short's testimony that she did not see a 4x4 in the wound after Olsten had stopped administering care to Jacqueline.
The inference created by res ipsa loquitur will defeat a motion for summary judgment even though the defendant presents evidence tending to establish the absence of negligence. See Schaffner, 336 S.E.2d at 118. Here, again, in support of its summary judgment mo
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