334 P.3d 426
Okla. Civ. App.2014Background
- Decedent was admitted to Mercy Health Center (MHC) on Nov. 7, 2005, for a small bowel obstruction; surgery was scheduled for Nov. 8. During transfer to the ICU on Nov. 8 she "coded" and died that evening.
- Plaintiff Donald Rogers (personal representative) sued Dr. R. Cullen Thomas and MHC for negligence; Rogers settled with Dr. Thomas and proceeded to trial against MHC alone.
- Rogers alleged Decedent aspirated (vomit entered her airway) during/around the transfer and that MHC nursing staff failed to take or document appropriate precautions and monitoring.
- At trial Rogers requested res ipsa loquitur jury instructions (both general and medical versions) arguing the transfer/process was an instrumentality within MHC's exclusive control and the irreversible decline would not ordinarily occur absent negligence.
- The trial court refused the res ipsa instructions and allowed limited evidence that Rogers had settled with Dr. Thomas (but not the settlement amount); the jury returned a verdict for MHC. Rogers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was entitled to a res ipsa loquitur instruction | Rogers: Decedent’s irreversible decline occurred during transfer — a process/instrumentality solely within MHC control — and massive aspiration does not ordinarily occur absent negligence | MHC: Plaintiff failed to identify an instrumentality solely under defendant’s control and failed to prove the foundation facts required by statute; evidence was speculative | Court: Reversible error — sufficient evidence existed on all three statutory foundation elements to let jury decide; res ipsa instruction should have been given |
| Whether the injury was of a kind that does not ordinarily occur absent negligence | Rogers: Massive aspiration and resulting death in these circumstances is not ordinary absent negligence; expert and treating testimony supported that aspiration was preventable | MHC: Evidence was conflicting; no proof that aspiration would not occur absent negligence | Court: Evidence presented could support the inference; issue for jury when proof conflicts |
| Whether the instrumentality can be a process rather than an inanimate object | Rogers: The "process of transferring" (bed incline, suction, oxygen mask, monitoring) is a proper instrumentality under res ipsa precedents | MHC: The asserted instrumentality was too vague and not shown to be solely under its control | Court: Process may qualify; plaintiff presented sufficient particularized evidence about transfer-related precautions and control to satisfy foundation facts for res ipsa |
| Admissibility/limitation of evidence about settlement with Dr. Thomas | Rogers: Settlement evidence should have been excluded or, if admitted, the full agreement (including amount) should have been shown to avoid misleading jury | MHC: Settlement evidence relevant to rebut plaintiff’s portrayal of Dr. Thomas as a highly paid employee accepting responsibility | Court: Did not decide on retrial but expressed concern; instructed that trial court must weigh probative value vs. prejudicial effect and, if admitted, contents of the settlement must be admitted |
Key Cases Cited
- Florafax Int'l, Inc. v. GTE Market Res., Inc., 933 P.2d 282 (discusses standard of appellate review for jury verdicts)
- Boxberger v. Martin, 552 P.2d 370 (explains res ipsa loquitur as circumstantial rule where accident ordinarily doesn’t occur if due care exercised)
- St. John's Hosp. & Sch. of Nursing v. Chapman, 434 P.2d 160 (res ipsa applicable where a "peculiar situation" — e.g., injury when patient turned in bed — indicates negligence)
- Harder v. F.C. Clinton, Inc., 948 P.2d 298 (res ipsa: foundational facts required by statute; question is legal and reviewed de novo)
- Smith v. Hines, 261 P.3d 1129 (res ipsa raises rebuttable inference allowing plaintiff to avoid directed verdict)