Metropolitan News-Enterprise


Wednesday, July 9, 2003


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Anatomical Remoteness of Injury Insufficient to Invoke Res Ipsa Loquitur in Medical Malpractice Case—C.A.


By a MetNews Staff Writer


A medical malpractice plaintiff’s declaration that she awoke from pelvic surgery with persistent arm, neck and shoulder pain did not establish the elements of res ipsa loquitur, the Fourth District Court of Appeal ruled yesterday.

Writing for Div. Two, Justice Jeffrey King said Riverside Superior Court Judge Gloria Trask properly granted summary judgment against Tonja Elcome in her suit against Dr. Michael Chin and Tenet Healthsystem Heritage, Inc., the operator of Rancho Springs Medical Center.

King said Elcome’s declaration failed to establish either that her injury was of a kind which ordinarily does not occur in the absence of someone’s negligence or that it was caused by an instrumentality in the exclusive control of the defendant—two of the elements of res ipsa.

The plaintiff’s declaration recited that she was unconscious during the surgery, from which she awoke with severe pain in her elbow, shoulder, and arm which later worsened and spread to her neck, back, and hip. It added that she had not previously experienced significant pain in those regions.

The pelvic surgery had been performed to alleviate urinary and bowel symptoms. Elcome also submitted a medical expert’s declaration that the injuries she alleged were “not the type of injuries or complications normally expected or ordinarily considered to be risks related to or associated with the surgery that was performed.”

“Plaintiff contends that it is within common knowledge that a person should not develop injury to their neck and upper extremities as a result of an operation focused in the pelvic area,” King wrote. “Therefore, she argues, the evidence showed that at least one of the defendants must have been or probably was negligent and caused her injuries. We disagree.”

Elcome’s declaration failed to exclude the possibility that her symptoms were caused by pre-existing upper extremity problems, King said. The justice added:

“[A]ssuming that plaintiff’s neck and upper extremity problems arose during the surgery, it does not suggest a probability that one or more of the defendants was negligent. Many problems could have arisen during the surgery which were not the result of someone’s negligence.”

King noted that the declaration of Elcome’s medical expert attributed her alleged injuries to “some negligent conduct, substandard handling or treatment or some other intervening action or agent during the surgery or immediately prior to or thereafter.” He observed:

“This statement suggests the possibility that plaintiff’s injuries were caused by one of the defendants’ negligence, but it also acknowledges the possibility of alternative causes.”

The justice distinguished Ybarra v. Spangard (1944) 25 Cal.2d 486, in which the Supreme Court held res ipsa applicable where a plaintiff experienced arm, neck and shoulder pain following an appendectomy. The plaintiff in Ybarra submitted medical evidence ascribing the injuries to trauma, King pointed out.

He explained:

“The testimony of the two doctors in Ybarra on the issue of causation was vital to the doctrine’s application. Although the doctors could not specifically identify the cause of the plaintiff’s injuries, they were able to opine that plaintiff’s paralysis was traumatically caused. This, in conjunction with the plaintiff’s testimony that he didn’t have the problems before the operation and that there was no voluntary action on his part which contributed to the injuries, was sufficient to establish that the plaintiff’s injuries were probably caused by an agency or instrumentality within the defendants’ exclusive control and thereby invoke the doctrine. Here, however, plaintiff produced no evidence of the cause of her injuries, the second element of res ipsa loquitur....”

Justices Thomas E. Hollenhorst and Art W. McKinster joined in King’s opinion. The case is Elcome v. Chin, E031896.


Copyright 2003, Metropolitan News Company