Second DCA (FL)
Barber v. Manatee Mem'l Hosp.
2nd DCA, 3/22/24
No. 2D22-3459, 2024 WL 1221193
Chief Judge Sleet
Topics: Medical Malpractice; Res Ipsa Loquitur
Full Take: This case is about our old, oft-forgotten law school friend, “Res Ipsa Loquitur.”
Barber, who was thirty-six years old at the time, attempted to end his life by taking four different prescription medications while at home. He had a change of heart and called 911. When EMS arrived, he was pacing back and forth in his garage. While being examined, he had a seizure for 30 seconds. He was revived with ammonia, and he walked to the stretcher to be transported to the hospital.
Within four hours of arriving, Barber's condition deteriorated rapidly; he became nonresponsive, and medical staff sedated him, intubated him, put him on a ventilator, sent him for CT scans, and then transferred him to the ICU. He remained under observation in the ICU in a low position hospital bed equipped with an alarm and soft wrist restraints for the next fifty-five hours. Hospital records show that during that time, Barber's vitals were continuously monitored and there were no complications, with specific notations from September 24, 2017, stating “appropriate body movements” and “[m]oves all extremities equally.” According to hospital records, Barber's stay in the ICU was uneventful, and nothing in the records suggest hip problems or seizure activity while he remained unconscious. After 2.5 days of unconsciousness, he woke up and was extubated, but began complaining of pain in his groin. When he was sent for x-rays, he had severe pain, and he needed to be lifted onto the x-ray board. His leg was turned outward, and he was diagnosed with bilateral hip fractures.
Barber underwent surgery at Manatee to repair his hip fractures, but no hospital personnel ever explained to him how his hips were injured.
Barber found an attorney. After receiving notice of the claim, the hospital denied any knowledge of the cause of the hip fracture. Plaintiff followed all of the Chapter 766 presuit procedures and then filed a one-count complaint of medical negligence.
No hospital records documenting any incident or event that could have caused Barber's injuries were uncovered, so experts for both sides had to rely on opinions of the most common causes of bilateral hip fractures.
Manatee moved for summary judgment, arguing that Barber had “failed to meet his burden of proof and ... to put forth sufficient evidence in order to prove his medical negligence claim” because his “experts could not testify within a reasonable degree of medical probability that the healthcare providers at Manatee Memorial caused ‘trauma’ to this patient resulting in his fractures.” They opined that the fractures might have been caused by an “unwitnessed seizure.”
Manatee acknowledged that Barber could argue the doctrine of res ipsa loquitur, but they argued that it was inapplicable here because his experts “acknowledged that these types of fractures can result from falls from multiple story buildings, a fall out of bed, or the patient getting out of bed on his own.”
Barber opposed Manatee's motion by pointing out that the hospital's own experts acknowledged that his hip fractures occurred while he was under the hospital's care. Barber relied on his expert’s testimony that Barber did notsuffer a seizure and that severe bilateral hip fractures do not ordinarily occur to a sedated, unconscious ICU patient absent negligence. He argued that because Manatee had failed to document any specific trauma or other cause of his hip fractures, he was entitled to argue to the jury a res ipsa loquitur theory of negligence and the jury, as the trier of fact, should resolve the genuinely disputed material issue of whether his hip fractures were caused by the negligence of Manatee.
Manatee also filed a motion in limine to exclude evidence of its failure to investigate the cause of Barber's unexplained injuries once they were discovered. Manatee argued that any suggestion that an investigation would have determined the cause of Barber's injuries was speculation, that whatever it did or did not do after the fact was irrelevant, and that this is not a res ipsa loquitur case.
The trial court also granted the motion in limine. The trial court indicated that “an after-the-fact attempt to piece together facts and theories to that analysis is generally not admissible” and that it was speculative that an investigation would have revealed the mechanism that caused Barber's injuries or a more specific determination as to how Barber was injured. The court specifically stated at the limine hearing that it was not ruling at that time on whether Barber could avail himself of a res ipsa loquitur theory of negligence.
The trial court then granted Manatee’s summary judgment motion, holding that Barber “had failed to put forth sufficient evidence that [his] inexplicable injuries were the result of negligence on the part of” Manatee. The trial court noted that Barber alleged a violent injury on his person, but there “quite simply…no evidence of same.”
Barber appealed.
The DCA observed that Manatee met its initial burden of showing that the record below lacked any evidence of any specific act of negligence on the part of the hospital, its agents, or its employees that could have caused Barber's bilateral hip fractures. Thus, the burden shifted to Barber to demonstrate the existence of a genuinely disputed fact upon which a jury could find that one or more agents or employees of Manatee committed an act of negligence that resulted in his injuries. To meet his burden, Barber presented expert witness testimony and relied on the doctrine of res ipsa loquitur, which is Latin for “the thing speaks for itself.” The trial court, however, ruled that Barber could not avail himself of that evidentiary doctrine and granted summary judgment in favor of Manatee. This was error.
Plaintiffs in negligence cases may use the doctrine of res ispa loquitur as “a common-sense inference of negligence where direct proof of negligence is wanting.” The doctrine “is a rule of evidence that permits, but does not compel, an inference of negligence. The doctrine only creates an inference and that while “negligence may not be presumed, where direct proof is wanting and such circumstances are shown as to leave no conclusion except that the defendant was at fault, a prima facie case may arise, justifying the application of the rule of res ipsa loquitur.
The hospital-patient relationship is one area where the application of the doctrine has been utilized to prevent injustice. A plaintiff may only invoke the doctrine under very limited circumstances. The trial court must ask whether it can realistically be concluded that this ‘happening’ does not ordinarily occur in the absence of negligence by the defendant. The initial burden is on the plaintiff to establish that (1) negligence is the probable cause and (2) the defendant is the probable actor. When a plaintiff meets that burden, the doctrine of res ipsa loquitur is applicable, and the issue of the hospital's negligence should be submitted to the jury with the proper jury instruction.
In medical negligence cases, a plaintiff must present evidence from which a jury could conclude that the injury was unrelated to the surgical procedure or other medical treatment that the defendant was legitimately providing the plaintiff. Res ipsa loquitur is inappropriate in a matter involving a physician's exercise of skill. Here, the parties do not dispute that Barber's bilateral hip fractures were completely unrelated to his medical treatment for his attempted overdose.
To be entitled to argue res ipsa loquitur to the jury, a plaintiff must present sufficient evidence that the instrumentality causing his or her injury was under the exclusive control of the defendant and that the incident causing the injuries would not ordinarily occur without negligence on the part of the one in control. The trial court found that Plaintiff’s experts could not rule out that the injury happened prior to the hospitalization. That ignores, however, that even Manatee’s expert opined that the injury was sustained “in the hospital” while he was unconscious and in the exclusive control of the hospital. Both parties’ experts agreed that there was some possibility that Barber sustained the injuries before he arrived at the hospital, but that was because there is simply no explanation for Barber's fractures. Both parties’ experts also agreed that it was more probable that the injuries occurred while Barber was in the hospital. This evidence was sufficient to satisfy Barber's burden, which at this point in the proceedings is only that negligence was the “probable” cause and the hospital was the “probable” actor. And the evidence, again, showed that Barber was walking when EMS arrived, and he walked himself to the stretcher. It doesn’t sound possible that he could do that if his hips were already broken.
To argue res ipsa loquitur, a plaintiff is not required to establish the identity of the instrumentality that caused the injury; rather the doctrine merely requires that the instrumentality causing the plaintiff's injury was under the exclusive control of the defendant. Barber presented sufficient evidence from which the jury could conclude that Manatee had exclusive control over Barber because he was unconscious in the ICU for fifty-five hours, so he met his burden of establishing this res ipsa loquitur prerequisite.
The trial court also misunderstood the final res ipsa loquitur prerequisite—that the injuries would not ordinarilyoccur absent the defendant's negligence. In its order, the court focused on the lack of evidence that a Manatee employee committed a negligent act. But if the plaintiff had evidence of the defendant's negligence, the inference would not be necessary. One may not avail himself of the doctrine if he proves specific negligence. The question the trial court should have considered is whether the fractures are a phenomenon that does not ordinarily happen except in the absence of due care. Manatee’s own experts opined that the most common causes of bilateral hip fractures are falling from the height of a three-story building or being involved in a severe motor vehicle accident and that such injuries do not normally happen to an unconscious ICU patient.
Res ipsa loquitur is often invoked out of necessity in cases like this where a previously sedated and unconscious patient wakes up in a hospital with a new injury that is unrelated to their treatment and where there is little to no direct evidence of negligence proving who or what caused the injury. The unconscious patient is entitled to an explanation concerning an injury and is, thus, in many cases, entitled to the inference created by the doctrine. Without the aid of the doctrine of res ipsa loquitur, a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.
Manatee theorized that Barber suffered a seizure while in the hospital and that his bilateral hip fractures were caused by that seizure, a seizure that no hospital personnel documented witnessing. Such a conclusion is based on nothing but pure speculation. The mere possibility that the injury could have occurred without negligence does not defeat a party's entitlement to a jury instruction on res ipsa loquitur. The proper test is whether the injury would have occurred without negligence on the part of the defendant in the ordinary course of events. Here, there is no documented medical evidence to prove that Barber suffered a seizure while in the hospital, but such seizures alone would not ordinarily result in the injuries that Barber suffered. Absent a fall, they mostly cause only upper extremity injuries. Manatee expert testified that only “around 0.3 percent” of seizures result in bone fracture absent a fall.
Barber’s experts opined that he either fell or was dropped while in the exclusive care and custody of the hospital and that injuries as severe as his bilateral hip fractures could not occur under those conditions absent negligence on the part of Manatee. Further, Barber's experts asserted that if Barber had suffered a tonic-clonic seizure, the violent convulsions would have caused tachycardia and respiratory distress, he likely would have voided his bowels and bladder, and alarms would have been triggered to alert the hospital's staff as his vital signs were being constantly monitored in the ICU. The hospital's records for the period that Barber was unconscious in the ICU do not reveal any such changes in his vital signs or that any alarms were triggered. There is simply no evidence that Barber suffered an unwitnessed seizure violent enough to result in these injuries.
The trial court erred in placing the burden upon Barber to prove direct evidence of Manatee Memorial's negligence. The lack of direct evidence of negligence is not fatal to Barber's case; it is what makes it a res ipsa loquitur case. Requiring Barber to introduce evidence that would prove negligence would be to require him to defeat his own res ipsa loquitur claim.
Because the record evidence establishes that Barber's hip fractures were unrelated to his treatment for a drug overdose, that Manatee was in exclusive control of the instrumentality that caused his fractures, and that his fractures would not ordinarily occur absent negligence, Barber is entitled to argue res ipsa loquitur to the jury and have the jury instructed on a res ipsa loquitur inference of negligence.
This inference creates a genuine dispute as to the material fact of whether Manatee breached a duty of care owed to Barber causing Barber's injuries. As such, summary judgment was improper.
Barber also argues on appeal that the trial court erred in granting Manatee's motion in limine to exclude evidence of its failure to investigate the cause of Barber's injuries once they were discovered. Because the trial court reserved ruling on whether Barber could base his negligence claim on res ipsa loquitur, its determination that evidence of Manatee's failure to investigate his injuries was irrelevant was an abuse of discretion. In order to argue res ipsa loquitur, Barber must be able to establish a lack of available evidence surrounding the events that led to his injuries. Standard jury instruction 402.4(e) asks the jury to consider whether ordinarily the incident or injury would not have happened without negligence. Manatee's failure to investigate the incident is therefore relevant. Additionally, the lack of investigation weakens Manatee's argument that Barber's injuries were the result of an undocumented violent tonic-clonic seizure and establishes the limited foundation for the hospital's expert witnesses’ opinions. And the trial court can appropriately instruct the jury that Manatee's failure to investigate should be considered only for the purposes of demonstrating a lack of evidence surrounding the cause of Barber's injuries and not as evidence of the hospital's negligence. REVERSED AND REMANDED.
