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Balfour v. Kimberly Home Health Care7/12/2005
tion, Olsten designated as evidence Dr. Short's testimony that she did not see a 4x4 or any tunneling in Jacqueline's wound when she examined it sometime after Olsten's treatment had ceased. But, because the Balfours have met their burden of production through the application of res ipsa loquitur, that evidence only creates a question of fact on the issue of negligence for the trier of fact. See id.; see also Gold, 720 N.E.2d at 1182-83 (observing that where a plaintiff has satisfied the elements of res ipsa loquitur, "even though the defendant comes forward with an explanation of the accident and evidence of his . . . due care, the inference of negligence drawn from the facts does not disappear from the case, but instead remains, and is placed upon the scales to be weighed by the trier of fact along with any and all explanations of the defendant, as well as all of the other evidence."). Indeed, Dr. Elmore testified that given the size of Jacqueline's wound, someone might have "push[ed the 4x4] up probably in any direction, maybe a foot up in [her abdomen]." Appellant's App. at 65. Depending upon how thorough Dr. Short's exam of Jacqueline's wound was, Dr. Elmore's testimony provides a reasonable explanation for why the 4x4 might have been present, but was missed by Dr. Short.
In sum, the designated evidence shows that there exists a genuine issue of material fact regarding Olsten's alleged negligence. While Dr. Short testified that she did not see a 4x4 in Jacqueline's wound after Olsten had stopped treating her, Dr. Elmore testified that the 4x4 could have been left in the wound at any time following the surgery. And a trier-of-fact could reasonably infer from Dr. Elmore's testimony that the 4x4 could have been hidden from Dr. Short's view. The trial court erred when it entered summary judgment in favor of Olsten.
Reversed and remanded for further proceedings.
SULLIVAN, J., and RILEY, J., concur.
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