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Baker v. Saint Joseph Healthcare2/11/2005
the surgeon leaves a foreign object in the body or removes or injures an inappropriate part of the anatomy. The second occurs when "medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters."
Id. at 655 (quoting Prosser and Keeton on Torts, Sec. 39 (5th ed. 1984)). An example of the second exception would be the case in which the defendant doctor makes admissions of a technical character from which one could infer that he or she acted negligently. See id. We do not believe either exception is involved here.
There are no facts or circumstances from which negligence and causation can be inferred. See Perkins, 828 S.W.2d at 654. Neither Dr. Halpin nor Saint Joseph Hospital made admissions of a technical character from which one could infer negligence on the part of either defendant. Further, we do not believe that the average layperson possesses the knowledge or experience to know if the arm and shoulder are involved in the pacemaker placement procedure or if it is possible to have shoulder pain after pacemaker surgery even in the absence of negligence.
There is no proof as to how Sam's shoulder injury occurred -- only an unsubstantiated theory. Sam's argument that there was nothing wrong with his shoulder before the surgery; there was something wrong with his shoulder after the surgery; therefore the res ipsa loquitur doctrine is applicable is too simplistic in light of the nature of Sam's injury as testified to by Dr. Popham. When asked by plaintiff's counsel during a deposition if the rotator cuff tear could have occurred during the pacemaker procedure if the left shoulder and arm were pulled down to find the left subclavian vein, Dr. Popham responded that it was a possibility, although an unlikely one. Moreover, Dr. Popham opined that the source of Sam's pain could be a number of possibilities, including degenerative arthritis and bone spurring, neither of which was caused by the injury alleged to have occurred during the surgery.
Finally, Sam cannot truly state that nothing was wrong with his shoulder before the pacemaker insertion, as his medical records show that he complained of left pectoral pain and left shoulder arthritis in a visit to his cardiology group one year and two months before the pacemaker insertion.
The summary judgment is affirmed.
ALL CONCUR.
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