Middlebrook v. Imler, Tenny & Kugler, M.D.'s, Inc.

SIMMS, Chief Justice,

dissenting:

I join with the views expressed by Justice Summers, but dissent for the additional reason that an instruction on res ipsa loqui-tur was not appropriate in this action. Through the testimony of expert witnesses, plaintiff presented evidence of specific acts of negligence on the part of the defendant. Res ipsa loquitur, which supplies an inference of negligence when specific evidence is not available, is not necessary or permissible in a case such as this.

Res ipsa loquitur is a rule of evidence. It is a traditional rule of justice and necessity which is applied in those peculiar situations where the proof of the negligent act is within the defendant’s power to control and beyond the plaintiff’s. The purpose of the doctrine is to aid plaintiff in making a prima facie case of negligence on the part of defendant, without proof of specific acts of negligence, by allowing the trier of fact to infer negligence as legitimate deduction of fact from those fundamental facts which are established by direct evidence.

While in an ordinary negligence case each act or omission alleged to constitute negligence must be specifically pleaded and proved, in a res ipsa loquitur case a permissive inference of negligence replaces direct evidence. See, Flick v. Crouch, Okl., 555 P.2d 1274 (1959); E.S. Billington Lumber Co. v. Cheatham, 181 Okl. 402 , 74 P.2d 120 (1937).

I cannot agree with the majority view that Title 76, O.S.1981, § 21, authorizes a res ipsa loquitur instruction in a medical malpractice action such as this, where direct evidence of specific acts of negligence is presented. If 76 O.S.1981, § 21 authorizes plaintiffs in malpractice actions to put on proof of negligence and receive a presumption of negligence, then to my mind substantial questions are raised as to the fairness of the trial defendants will receive. Here, as in Flick v. Crouch, supra, there is no room for an inference of negligence. As with all other cases brought by a plaintiff alleging injury by reason of specific acts of negligence, plaintiff must succeed, if at all, by reason of the jury’s belief in plaintiff’s version of the law suit as presented by his witnesses.

I agree with appellant's analysis of 76 O.S.1981, § 21, that the statute does not replace, but simply supplements our traditional common-law rule of res ipsa loquitur. It was intended as a slight refinement and modification of res ipsa loquitur in its application to medical malpractice actions. It was meant by the legislature to be superimposed over existing precedent, not to become a new independent rule in and of itself. The statute is intended to apply *588 only in an action which is an appropriate res ipsa loquitur case. See, Lambert v. Midwest City Memorial Hospital Authority (10th Cir.), 671 F.2d 372 (1982).

I am persuaded by appellant’s suggestion that a recent law review article, Friedman, “Professional Malpractice in Oklahoma Part I: The Medical Profession”, 2 Okla. City Univ. Law Review 21 (1977), fully explains the motiviation of the legislature in passing this statute. The author points out that Section 21 is generally recognized as a response to the malpractice crisis, and that the legislature intended to strengthen the direction previously taken by our decisions in malpractice cases, and to eliminate some confusion and resolve any lingering ambiguities which had developed in this uniquely medical area.

Sub-section 1, Friedman notes at page 29, resolved the ambiguity some found in St. John’s Hospital and School of Nursing v. Chapman, Okl., 434 P.2d 160 (1967), by declaring that in malpractice actions, negligence is considered a presumption not just an inference. Sub-section 2 adopts the rule of Ybarra v. Spangard, 25 Cal.2d 486 , 154 P.2d 687 (1944), allowing application of the presumption of negligence against multiple defendants. The third sub-section, allowing trial courts the discretion to require expert testimony to prove foundation facts beyond the knowledge of the average person, is, in the author’s opinion, a legislative response to Martin v. Stratton, Okl., 515 P.2d 1366 (1973).

I do not agree with the majority that § 21 requires a departure from our traditional rule prohibiting a res ipsa loquitur instruction in a case involving specific evidence of negligence. Today’s ruling raises serious questions about the fairness of a trial in a medical malpractice action, where with proof of injury, plaintiff is able to put on specific evidence of negligence and receive a presumption of negligence.