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Howie v. Walsh3/1/2005
mere occurrence of the event and the defendant's relation to it.'" Kekelis v. Machine Works, 273 N.C. 439, 443, 160 S.E.2d 320, 323 (1968) (quoting Restatement (Second) of Torts ยง 328D, at p. 157 (1965) (emphasis added)). Barring the use of the doctrine of res ipsa loquitur does not likewise bar the use of all circumstantial evidence in medical malpractice cases. It merely bars the jury from inferring negligence and causation from the occurrence of and defendant's relation to the event. In the instant case, the trial court's instructions improperly limited the jury's choices to utilizing direct evidence for purposes of traditional negligence and utilizing circumstantial evidence for purposes of res ipsa loquitur. We hold the trial court's failureto instruct with respect to N.C.P.I. _ Civ. 101.45, the circumstantial evidence instruction, constituted prejudicial error, entitling plaintiff to a trial de novo.
New trial.
Judges McCULLOUGH and GEER concur.
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