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Ross v. Olson4/20/2005
arily result if due care is exercised[.]" Kranda v. Houser-Norborg Medical Corp., 419 N.E.2d 1024, 1042 (Ind. Ct. App. 1981).
In Wright v. Carter, 622 N.E.2d 170 (Ind. 1993), our supreme court explained the rationale underlying the res ipsa loquitur doctrine:
Due to the complexity of the issues surrounding diagnosis and treatment, Indiana recognizes a rule by which the parties introduce the opinion of medical experts about the standard of care customary under circumstances similar to the case at issue. Expert testimony, however, is not always a prerequisite to surviving a defendant's motion for summary judgment. As we noted in Funk v. Bonham (1932), 204 Ind. 170, 183 N.E.2 312, there are some situations in which a physician defendant's allegedly negligent act or omission is so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not need an expert to help them conclude, say, that it is malpractice to operate by mistake on the wrong limb. Sometimes, the undisputed facts themselves create an inference of negligence such that the judge cannot say that the defendant must win as a matter of law, the contrary opinion of the medical review panel notwithstanding. Cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some surgical implement or other foreign object from the patient's body.
622 N.E.2d at 171-72. As subsequently explained by a separate panel of this Court in Boston v. GYN, Ltd., 785 N.E.2d 1187, (Ind. Ct. App. 2003), trans. denied:
Application of this exception [common knowledge or res ipsa loquitur] is limited to situations in which the physician's conduct is so obviously substandard that one need not possess medical expertise in order to recognize the breach of the applicable standard of care. . . . For instance, expert testimony is not required in cases involving a physician's failure to remove surgical implements or foreign objects from the patient's body. The rationale underlying these cases is that the facts themselves are sufficient to raise an inference of negligence without expert testimony.
785 N.E.2d at 1191 (internal citations omitted.) Whether the doctrine applies to a particular negligence case is a mixed question of law and fact. Gold v. Ishak, 720 N.E.2d 1175, 1181 (Ind. Ct. App. 1999), trans. denied. The question of law is whether the plaintiff's evidence included all the underlying elements of res ipsa loquitur. Id. The plaintiff may show, by common sense or expert testimony, that the injury was one that would not ordinarily occur in the absence of proper care on the part of those controlling the instrumentality. Id. When the plaintiff has met this burden, the doctrine of res ipsa loquitur operates to permit an inference of negligence based upon circumstantial evidence. Widmeyer v. Faulk, 612 N.E.2d 1119 (Ind. Ct. App. 1993).
The circumstances surrounding Ross's surgery are unlike those in which our appellate courts have found that "the act speaks for itself." See, e.g., Gold, 720 N.E.2d at 1175 (patient's oxygen mask caught fire); Klinger v. Caylor, 148 Ind.App. 508, 267 N.E.2d 848 (1971) (surgical padding left in intestinal tract). Moreover, there is no dearth of causation testimony. The expert witnesses were in agreement as to the cause of Ross's injury, i.e., a surgical chisel severed his artery. They disagreed concerning the exercise of due care. The Rosses' expert opined that Drs. Olson and Chambers negligently failed to protect Ross's artery during surgery by using a retractor or taking other preventative measures. The physicians' experts opined that popliteal artery injury was a known complication of surgery, albe
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