stating that the appellant's attempt to prove that mention of the possibility of nerve injury was required in order to give informed consent demonstrated that the injury to the seventh cranial nerve was not an "extraordinary incident or unusual event"
How later courts described this case
- stating that the appellant's attempt to prove that mention of the possibility of nerve injury was required in order to give informed consent demonstrated that the injury to the seventh cranial nerve was not an "extraordinary incident or unusual event"
Written by the judges who cited it.
The opinion
Alexander, J.
(dissenting).
The controlling point in this case is not the fact, or extent, of the injuries suffered by the appellant, nor the probability that they were caused by the straps, but is whether the injuries were suffered as the result of the appellees’ negligence. It is not enough to determine the cause of an injury. The testimony for the plaintiff herself by the attending nurses and physicians shows that the straps used were of a type generally employed by hospitals and that no similar injury had ever been known to result from such use. There was no testimony that such an injury was probable. It is not enough that a certain injury be possible, for no liability may rest upon suspicion, conjecture or mere possibility. Missouri Pac. Transp. Co. v. Beard, 179 Miss. 764 , 176 So. 156 ; Yazoo & M. V. R. Co. v. Lamensdorf, 180 Miss. 426 , 177 So. 50 , 178 So. 80 ; Kramer Service, Inc., v. Wilkins, 184 Miss. 483 , 186 So. 625 ; Southern Ry. Co. v. Buse, 187 Miss. 752 , 193 So. 918 ; Equitable Life Assur. Soc. of United States v. Mitchell, 201 Miss. 696 , 29 So. (2d) 88 .
The injuries suffered by appellant are grievous but must be considered damnum absque injuria unless it can
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he shown that this injury was forseeable as a reasonable probability. A party is under no legal duty to guard against the improbable. There is nothing shown which would impose on the defendant an obligation to take precautions against that which it had no reason to foresee. Kramer Service, Inc., v. Wilkins, supra.
It may be that the burden of proof resting upon the plaintiff was insuperable, but our concern is not for the explanation but for the fact.
I do not find in this case an occasion to apply the doctrine res ipsa loquitur. This doctrine never supplies the cause of the injury but allows a deduction of negligence from an established cause. Sanders v. Smith, 200 Miss. 551 , 27 So. (2d) 889 .
I am authorized to state that the Chief Justice joins in this dissent.