Lоis and John Leone appeal from the judgment entered in a medical malpractice action finding no negligence on the part оf Victor J. Thomas, M.D. The Leones claim that the trial court erred in failing to give a jury instruction on res ipsa loquitur. We reverse.
On September 3, 1985, Thomas performed arthroscoрic surgery upon Mrs. Leone for the excision of a popliteal cyst of her left knee. Following the surgery, Mrs. Leone suffered from a loss of sеnsation and recurrent episodes of pain in her left foot and leg resulting from damage to her peroneal nerve.
The Leones instituted thе present action against Thomas on July 2, 1987, claiming that Thomas had been negligent in his treatment of Mrs. Leone. A jury trial was held before the Honorable David S. Cercone on December 4-10, 1991, in which expert testimony was introduced by both parties. At the close of testimony, the Leones requested that the trial court charge the jury on the doctrine of res ipsa loquitur. The trial court denied this request. A verdict was subsequently rendered in Thomas’ favor. Post-trial Motions wеre denied by the trial court and judgment was entered on the jury’s verdict on April 29,1992. The Leones appeal from this judgment.
When reviewing the trial court’s denial of a motion for a new trial, we are limited to determining whether there was a clear and palpable abuse of discretion or errоr of law which controlled the outcome of the case.
Butler v. Kiwi,
The Leones present one issue for our review: whether the trial court errеd in failing to instruct the jury in the doctrine of res ipsa loquitur. We conclude that as the doctrine of res ipsa loquitur may be applied to the facts of this case, the trial court erred in refusing to so instruct the jury.
Our supreme court first adopted the doctrine of
res ipsa loquitur,
as articulated in the Restatement (Second) of Torts
-§ 328 D. Res Ipsa Loquitur
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the infеrence may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
This Court has held that the doctrine of
res ipsa loquitur
may be applied in medical malpractice cases.
Jones v. Harrisburg Polyclinic Hospital,
First, the trial court found that the Leones failed to establish that the injury which Mrs. Leone suffered during the
To sustain their burden of proof, the Leones were required to produce evidence which would permit the conclusion that it is more likеly than not that the injuries were caused by Thomas’ negligence.
Sedlitsky v. Pareso,
The trial court here, however, placed the extra burden upon the Leones to prove that the injuries sustained could not occur in the absence of negligence. Trial court opinion at 2. This is not required under Section 328 D. Under that section, the Leones need only prove that negligence is more probable than not. Restatement (Second) of Torts § 328 D comment e. The jury is permitted to drаw from the occurrence of an unusual event the conclusion that it was the defendant’s fault. Restatement (Second) of Torts § 328 D comment a.
Sеcond, the trial court held that the Leones failed to sustain their burden under the second element of section 328 D because the evidence did not establish that other causes of
To sustain their burden under the second element of section 328 D, the Leones were not required to exclude all other possible explanations for the injury. Restatement (Second) of Torts § 328 D comment e;
Carney v. Otis Elevator Co.,
Moreover, the only other explanations offered by Thomas for Mrs. Leones’ injuries were evеnts associated with the surgery, all of which were under the guidance and exclusive control of Thomas.
See, e.g.,
N.T., December 9, 1991 at 32-33; N.T., December 6,1991 at 125-129. It is prеcisely this type of case, one in which an unconscious patient is unable to aver the specific conduct which caused her injury, in which
res ipsa loquitur
applies.
Jones,
The third element under section 328 D, that Thomas owed a duty to protect his рatient from damage to the peroneal nerve during surgery, is uncontested between the parties. We conclude that since the Leonеs had established the three required elements under section 328 D, the question of wheth
We, therefore, conclude that since the Leones presented sufficient evidence to warrant a jury instruction regarding res ipsa loquitur, the judgment must be reversed.
Judgment Reversed and Case Remanded for a new trial.