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Bowden v. Annenberg12/9/2005
y be appropriate in medical-malpractice cases, see Mahan v. Bethesda Hosp., Inc. (1992), 84 Ohio App.3d 520, 617 N.E.2d 714, a res-ipsa-loquitur instruction cannot be based solely on unsuccessful treatment. See Oberlin v. Friedman (1965), 5 Ohio St.2d 1, 8, 213 N.E.2d 168.
{ } The applicability of res ipsa loquitur must be determined by the trial court on a case-by-case basis. See Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 171, 406 N.E.2d 1385. Whether the plaintiff has offered sufficient evidence to warrant application of the doctrine is a question of law. See Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 67, 262 N.E.2d 703. The trial court's decision is subject to de novo review on appeal. See id.
{ } Mrs. Bowden's surgery involved multiple successive injuries to her vascular system. It was the culmination of these injuries that ultimately resulted in her death. At issue in the trial was whether the sponge-stick slippage that caused Mrs. Bowden's vascular injuries was an event that could have occurred in the absence of negligence, and whether Dr. Annenberg or Smith misused the sponge sticks. Bowden contended that Dr. Annenberg or Smith negligently used the sponge sticks to compress and control the bleeding from the initial tear, thereby causing additional injury to her vascular system.
{ } But the evidence showed that employing sponge sticks to stop blood flow in this procedure was not a deviation from the standard of care, that sponge sticks moved and slipped in the absence of negligence, and that sponge-stick movement, in and of itself, did not represent a deviation from the standard of care. Bowden's own expert witnesses admitted that some of the vascular injuries could have occurred even if Dr. Annenberg and Smith had acted in accordance with the standard of care, as sponge sticks could slip in the absence of negligence.
{ } Res ipsa loquitur cannot be applied where there are multiple sources of injury, only one of which satisfies the doctrine's threshold requirements. In Jennings Buick v. Cincinnati, the Ohio Supreme Court noted that a plaintiff had presented evidence through expert testimony that a water-main break had probably been caused by the improper backfilling technique of the defendant city. On cross-examination, the plaintiff's expert admitted that it was equally as probable that the water-main break was due to other causes not related to negligence. The supreme court held that a res-ipsaloquitur instruction should not have been given, as "there was evidence presented to the trier of the facts which would have allowed the jury to find that one or another potential cause of the injury not attributable to the negligence of the [defendant] was equally as probable as was a cause attributable to the negligence of the [defendant]." Jennings Buick, Inc. v. Cincinnati, 63 Ohio St.2d at 174, 406 N.E.2d 1385.
{ } "Where it has been shown by the evidence adduced that there are two equally efficient and probable causes of the injury, one of which is not attributable to the negligence of the defendant, the rule of res ipsa loquitur does not apply." Id. at 171, 406 N.E.2d 1385; see, also, Golden v. Wirts, 3d Dist. No. 1-02-24, 2003-Ohio-522, at .
{ } As the record contains evidence of more than one equally efficient and probable cause of Dorothy Bowden's vascular injuries, at least one of which would not have been attributable to the negligence of Dr. Annenberg and Smith, an instruction on res ipsa loquitur was not appropriate. The second assignment of error is overruled.
Matters Consigned to the Trial Court's Discretion
{ } In his four remaining assignments of error, Bowden argue
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