*1 of the Court the decision Accordingly, that, because as it holds
Appeals, insofar its motion allege in
plaintiff did not in error that petition in its trial and
new refusing allow erred in trial court from judgment on the percent interest
six date of ver- petition was filed
the date not before question was
dict, the interest case court, The reversed. appellate is is in- trial court remanded at the verdict add interest on
structed to per annum percent (6%) six
the rate of commenced the suit was date of the trial judgment verdict.
date of affirmed.
court is otherwise concur.
All of the Justices Appellant, MARTIN,
Charlie Individual, STRATTON, Harold Associates, Inc., an Okla Anesthesia corporation, Appellеes. homa
No. 45370.
Supreme Oklahoma. 23,
Oct. ” complaint filing period, legislative at the rate of . . . interest expressed intent It directive, was noted this was a ministerial as a clear ministerial procedural prospective enough require act which was of the assessment Trapp looked forward the time a writ of interest. also M. E. Asso See 6% might Tankersley (1951), execution issued. the instant ciated v. 206 Old. case, go we need not so far as to find prospective beginning matter *2 hypodermic needle by injecting
anesthetic plexus into area the brachial performed Another doctor right shoulder. operation. *3 plaintiff was not All indicates complications possible inherent advised of the anesthetic and possible plaintiff testified alternatives with him. not discussed sharp pains felt Plaintiff he two and was administered when the anesthetic testified the then He lost consciousness. might pain which pain comparable to crazy to the blow result a severe comparable bone, a he had never felt pain. operation his shoulder was After the wore off he numb and after numbness pain in his shoulder which had a severe the time of about six At for weeks. lasted trial, operation, years he three after regained had full use of his arm. a suffered evidence established axillary supply partial loss of the lifting of which controls the deltoid muscle from the the arm shoulder. presented their both sides After re- the trial court sustained defendants’ plaintiff’s evidence. demurrer newed Ap- appealed and the Plaintiff peals, reversed and remanded Division grant for certiorari. new trial. We a the evi Neither demurrer Harral, Floyd Larry L. Walker and S. dence nor motion for directed verdict Tulsa, appellant. for en unless there an should sustained Joseph Best, Best, Joseph Sharp, M. A. any right of proof to tire absence show Glass, Tulsa, Sharp, appel- Thomas for & Co., recovery. Meadow Fletcher Gold v. lees. Okl., de passing on a P.2d 885. evidence, di murrer to the motion BERRY, Justice: verdict, accept must rected trial court Plaintiff, Martin, evidence, Charlie infer all and instituted as true reasonable personal injuries therefrom, party action allegedly re- ences favorable to sulting directed, against administration of an anesthet- while whom motion Stratton, defendant, ic Dr. disregarding conflicting Harold evidence favorable employee defendant, Ac Steiger member v. Anes- to the movant. Commerce Associates, Inc., professional Inc., Okl., thesia ceptance City, cor- Okla. poration. hospital
Plaintiff entered the
There was no evidence defendant Strat-
tumor
right
ton,
anesthetic,
removed from his
administering
failed
hand.
Stratton was engaged
learning ordinarily
to administer the an-
to exercise the
skill
esthetic and
anesthesiologists prac-
administered a
possessed
block
duty
to re
a doctor has
pears
be that
community. How-
general
ticing in the
would be dis
only information which
re-
veal
the evidence
ever, plaintiff contends
good standing within
a doctor
closed
the case
quired submission
doctor
community
of which
the medical
doctrine
“informed consent”
under
member,
the burden
plaintiff has
is a
loquitur case.
a res
and establish
establishing the standard
identifies
Informed
consent
the standard. Govin
ing defendant violated
person
right
has a
every
рrinciple that
421;
Hunter,
Nishi v.
Wyo., 374 P.2d
his own
what shall be done with
determine
Movius,
Hartwell,
supra;
Doerr
therefore,
body
in situations where
Mont.
bury v.
introduce
the burden to either
will have
jury
from which the
could rea-
There
evidence
is confusion
to whether
sonably
failed to
infer that the defendant
theory
battery
assault
pru-
reasonably
what
negligence failure to
disclose
disclose risks.
in
Grant,
physician
community
dent
in
medical
supra.
Jackson,
Cobbs v.
See
Sisler
l.,
reasonable care would have
the exercise of
In either event a
Ok
patient,
his
question
plain
disclosed to
arises as to what evidence
reasonably infer that
which the
tiff
in
could
must introduce
order to
establish
pro-
in
inherent
prima
material
majority
ap
facie
risks were
case. The
rule
witness
anesthesiologist, a
N, an
of seri-
Dr.
posed
procedure
terms
medical
heard
defendants,
he had never
fea-
ousness, probability
occurrence and
by administration
any injury being caused
alternatives, and defendant
sibility of
аxil-
injury to the
plaintiff.
a brachial block
these risks
failed
disclose
rarely oc-
block
lary
from a brachial
these
need not choose between
We
curs.
evidence was
plaintiffs
rules because
two
support ah
testimony
theories.
under both
would
insufficient
medical
inherent
risks
inference that
Here
evidence anesthesiolo-
there was no
block
of a brachial
administration
involved,
community
gists
within the
se-
testimony concerning the
nowas
there
nationally,
risks of anesthetics
disclose
risks,
probability
or the
of these
riousness
patients.
Therefore,
materializing.
risks
of these
Further,
there
no evidence
plaintiff’s evidence was
we conclude
reasonably
which the
could
jury to infer
allow the
sufficient
risks, in
ferred that material
terms
ma-
duty
disclose
breached
defendants
consequence,
probability and seriousness of
in the administration
risks inherent
terial
an-
of the
were inherent
anesthetic.
esthetic.
loquitur, one
As concerns
support
Stratton’s
*5
by
to
facts
be established
of the foundation
injury
type
an inference that
of
of the
risk
a
within this
bring
evidence to
case
the
by plaintiff
an
risk
suffered
was
inherent
thing”
application is “what
doctrine’s
plain-
of a brachial
block anesthetic
Okl.,
Stacy,
injury.
the
Holland v.
caused
injury
certainly
tiff’s
serious. How-
P.2d 1180.
ever,
tending
no
es-
there was
to
injury
tablish
an
probability
that
the
of
ap
Further,
only
the doctrine
plaintiff’s injury resulting
such as
from
the aсcident
plicable when
character of
administration of a
brachial block was
lead
attending it
reason
and circumstances
magnitude
patient deciding
such
a
that
that in the absence
belief
ably
whether to submit
administration
a
St.
not have occurred.
negligence it would
brachial block should be
of the
warned
Nursing v.
Hospital
& School
John’s
possibility.
performed
The doctor who
Okl.,
Chapman,
to cause
to lose consciousness.
injection could have caused
injury.
the
Dr. Stratton
the pre-surgery
However, between the
injection
time of the
given
plaintiff
medication
could have
plaintiff
and the time
aware of the
became
plaintiff
caused
not
hap-
to remember what
injury there were other occurrences which
pened in
operating
the
room.
could
injury
have caused the
only
and the
plaintiff
tending
introduced
to ex
proved
connection may be
Causal
clude other
tеstimony by
causes was
the
by
evidence,
circumstantial
but
the evi
operating surgeon
opera
the
effect the
dence
probative
must have sufficient
force
tion could
injury
not have caused the
be
legal
constitute the basis for a
infer
operation
cause the
was on the lower
ence,
speculation,
rather than mere
and the
arm,
part of the
not on the shoulder. No
proved
circumstances
must lead to the con
evidenсe was introduced to exclude the
clusion with
certainty
prob
reasonable
possibility
injury might
the
have been
ability. Downs
Longfellow Corporation,
v.
by
caused
positioning
during
of the arm
Okl., 351 P.2d
In
that case we stated:
operation
the
subsequent
thereto.
“ * * * we are
opinion
Therefore,
that
we conclude
did not
the evidence
by plaintiffs
adduced
is
introduce
support
sufficient evidence to
support
sufficient
an inference that
plaintiff’s
inferencе
injury
that
“prob
was
probably
the fire
by
a thing
ably”
caused
thing
caused
which was under
which was under the
manage-
exclusive
the
management
exclusive
and control of
ment and control of defendant. The
defendant and the doctrine
ipsa
of res
lo-
ipsa loquitur,
doctrine of res
quitur
there-
applicable.
therefore not
Downs
fore,
applicable.”
not
Longfellow Corporation,
v.
supra.
part
SIMMS,
(concurring
the
As concerns whether
Justice
dissenting
рart):
negligence
likely the result of
more
cause,
laymen
we conclude
than some other
«
opin-
majority
the
with
I concur
While
that a
qualified
not
to determine
analysis
application
of
in it’s
ion
ordinarily cause
would not
brachial block
consent,”
respect-
“informed
I must
law of
un
by plaintiff unless
injuries
suffered
majority
that the
to the
view
fully dissent
Mary’s Hos
skillfully
Bialer v. St.
done.
ipsa loquitur is not relevant
of res
doctrine
957; Buchanan
pital,
83 Nev.
this
case.
facts
Downing, N.M.
Hospital and
School
In St. John’s
Furthermore,
medical testi-
there was no
Nursing
Chapman, Okl.,
tration are cases, malpractice where the circumstances negligence result than some application, when we held in its warrant cause. following syllabi: it was not common testified that Dr. W involving malpractice or “3. Actions prop- type injury to result not, case, hospitals may in a es- block. Dr. er of a brachial cape loquitur.” res ipsa the doctrine of of some- in the absence N testified that Ordinarily, weight “6. rebut- not common for thing would unusual defendant, tal evidence offered of a result from administration negligence the inference on overcome question response brachial block. defendant, arises likely result whether would as to loquitur, as under the doctrine of res that in- he stаted absence inference, weight as well period. rarely occurs jury. Unless all are reasonable minds support an infer- This would conclusion, it is bound to reach the same ad- results from ence seldom trial, in a jury, that is to deter- in the ab- of brachial block ministration explanation mine whether or not the of- unusual, something sence of ‘satisfactory’ fered the defendant is injuries support an inference that when neg- enough to overcome the inferеnce of administra- result from such ligence, evi- though defendant’s even *7 injury is a the more tion of brachial block undisputed.” dence be any negligence than likely the result of Chapman find fol- body the of the we Therefore, the conclude we other cause. lowing language: to refusing in submit trial court did not err theory of the the case to the under ipsa of . under the doctrine res “. . ipsa loquitur. res of on loquitur the inference only part allowed the of the defеndant is Appeals is judgment of the Court of The where, by presented in the circumstances the trial judgment the and reversed plaintiff, the trier of the facts could the affirmed. court is the defendant had logically infer that ordinary care in the exercise failed to WILLIAMS, DAVISON, J., J., V. C. C. or, ordinary in course circumstances DOOLIN, IRWIN, LAVENDER and damage or things, injury JJ-, concur. ” occurred; . not have . . nec- SIMMS, Fundamentally, the three conditions JJ.,
HODGES, BARNES loquitur in part. essary application to of res part; in in сoncur dissent concisely injury resulted stated fer that are case trial of nerve from ad- from the involved: event that the anesthetic; that such ministration of the ordinarily of a kind which 1. Must be and is common not occur not injury does in absence some- does not occur negligence; in absence of that the al- negligence; one’s causing leged instrumentality instrumentality caused 2. Must be defendants; and, in the sole control control the exclusive agency within any not due to volun- that the defendant; plaintiffs part. on tary act any vol- have been due Must not 3. appellant appellee di- Brief both on the or contribution untary action attention case rect our California Prosser, Torts, 199 plaintiff. Michels, of Bardessono Cal.3d 1955) (2nd Ed. Bar- Cal.Rptr. (1970). P.2d 480 court, trial Appellant’s in the injections involved a dessono series accepted true for the must be which xylocaine deep cortisone into sore purposеs verdict of a motion for directed shoulder, right par- area of the and more demurrer, tended to establish and renewed ticularly, plexus, to the brachial with re- that: paralysis. sultant general good “1. was in Plaintiff health Supreme ap- The Court of California when hospital. he entered the proved giving ipsa loquitur in- 2. Plaintiff was sedated when wheeled struction, stating: operating into the room. record in “The this contains sub- case anesthesiologist injected 3. Defendant stantial evidence that tendoni- in administering the anesthetic place; tis condition was not common plexus brachial block anesthetic. injections of cortisone and a local Defendant, Stratton, 4. normal, Harold intended anesthetic (xylocaine) condition, reach the needle to the nerve area common treatment did damage not intend to traumatize that untoward results were extreme- He nerve. intended to rare.” ly bathе the the solution. case, therefore, “This involves a relative- injection At the Í. time of the in the ly simple, complex, proce- rather than plexus, plaintiff sharp felt a physician dure which injected pain, sharp pain, followed another body. fluid into the could ac- pass him caused out. cordingly rely upon its common knowl- edge determining Evidence the nerve whether the accident can be caused during injec- needle was of kind that would ordinarily nоt tions. in the occurred absence some- Thus, negligence. one’s the trial court It is necessary properly instructed the jury that if it ject or traumatize the nerve in adminis- expert found from testimony, common *8 tering the anesthetic. knowledge, and all the circumstances Injury normally 8. not does result from that the probable was more than administration of the anesthet- not negligence, the result of it could ic. negligence fer from the happening of growing 9. The weakness in the accident alone.” arm was due axillary to the Appellee argues that Bardessono is not nerves in area plexus, the brachial herein controlling because Bardessono injected same area the defendant.” holds proposition for the ipsa that res lo- evidence, This all admittedly quitur may only applied favorable where the sur- plaintiff, jury gical such that the could in- treatment simple, common, so 1374 doctrine, ipsa loquitur thе res knowledge one under it is within that known
well medical may rely both on of fact Further, if the trier that layman. ordinary See, knowledge. common testimony and unusual procedure so medical 399, 408, Gibbons, 58 66 Cal.2d Clark v. an testimony require complex as 125, P.2d Cal.Rptr. 426 525. applicable. not ipsa loquitur is expert, res adopted this doctrine was The same Bardessono. not so construe doI Gill, Okl., P.2d 530 462 in Delk in Bar is found following language was held: (1969) wherein 761, P.2d dessono, page Cal.Rptr. at 478 91 substance, contends, that in “Plaintiff page 481: at was suffi- not whether properly followed trial court “The question of jury go to the on cient to loquitur in instruct- ipsa of res doctrine acts caused not defendant’s whether negli- infer it could ing that condition, depend entirely does not her the acci- happening of from the gence S, any testimony oth- upon alone, the testi- it dent if found witness, that, under Okla- expert er expert wit- called mony physicians Kelly, 194 Okl. Gas Co. v. homa Naturаl all the nesses, knowledge, and common 1010, proximate 646, proof more circumstances, that expert entirely’ upon not rest 'need cause negli- the result of probably than not upon may testimony, 'but rest gence.” (E.A.) ” non-expert testimony.’ 768, Also, at Cal.Rptr. page at plaintiff, on It follows that re- therefore page 488: same, trial, to be the assuming the evidence “Thus, properly instructed the trial court permitted go should be on expert jury that if found ipsa loquitur, prop- under theory of res all knowledge, and testimony, common er instructions. the circumstances I am state authorized to that Justice probably the result of more than Hodges join Barnes Justice negligence, it could infer opinion concurring in part and dissenting happening from the the accident part. alone.” Bardessono, Supreme In Court of approval,
California cites with LaMere v.
Goren, Cal.App.2d 801-802, 43
Cal.Rptr. (1965); which case also in- injection
volved into the area plexus. The FIRST NATIONAL BANK AND TRUST CITY, COMPANY OF OKLAHOMA Na LaMere, In supra, the trial court refused Bаnking Association, Appellant, tional give ipsa an instruction on res loquitur and the appeals reversed, court of holding PARHAM, Cecil County Clerk of Oklahoma ipsa that a loquitur res instruction based County, Oklahoma, persons State of all expert on giv- should have been duly qualified acting as Assistant Coun dictum, however, en. rejected court ty Parham, Appel Clerks the said Cecil upon instruction based lee. common knowledge, for respect reason with No. particular to this type injection, “common Supreme Court of Oklahoma. knowledge layman is not a reliable Nov. *9 foundation.”
We believe the be, better rule to in de-
termining whether the occurrence of an
jury is of such a nature that it probably result of the of some-