“high voltage radiation in the treatment of cancer has been widely enough and long enough employed in this country to allow the jury to find that, within the experience and observation of mankind, myelopathy or paralysis ordinarily will not result from its use ____”
How later courts described this case
- “high voltage radiation in the treatment of cancer has been widely enough and long enough employed in this country to allow the jury to find that, within the experience and observation of mankind, myelopathy or paralysis ordinarily will not result from its use ____”
Written by the judges who cited it.
The opinion
Neill, J.
(dissenting in part)—I disagree with' the majority’s treatment of the res ipsa loquitur issue. The necessary elements of res ipsa are present and plaintiff is en *33 titled to the inference of negligence which gives rise to a jury question as to the negligence of the defendant. However, as elucidated in the lead opinion in Zukowsky v. Brown, 79 Wn.2d 586 , 488 P.2d 269 (1971), the doctrine has fulfilled its function in preventing a nonsuit or challenge to the sufficiency of the evidence, unless for some reason of fact or policy, the inference of negligence in the particular case is strong enough to invoke a greater procedural effect. The majority states no such reason. The first three paragraphs of instruction No. 3 given by the court (set forth as an appendix to the majority opinion) fully apprises the jury of its right to infer negligence from the facts and circumstances presented by the evidence. The fourth paragraph of that instruction unduly overbalances the instruction in favor of plaintiff.
Zvkowsky recognized the inconsistencies in our prior cases and attempted an approach that would be reckonable. The requirements for applicability of res ipsa were therein restated and broadened and a basic distinction was drawn between “ordinary” cases, where the procedural effect was to simply get by a nonsuit with no “highlighting” instruction, and those cases where, as a matter of articulated fact or policy, the res ipsa inference would have the effect of shifting some evidentiary burden to the defendant. The rationale of that opinion was not put forward as an absolute answer, but rather as a hopeful beginning toward a coherent replacement for the previous tangle of self-contradiction in our cases. For example, the distinction as to procedural effect could be made even more definite in certain types of cases (such as medical malpractice) by treating the policies underlying a shift in the evidentiary burden as an issue basically separate from res ipsa considerations. Zvkowsky poses no obstacle to a result favoring this plaintiff. Rather, Zukowsky would require a different analytical approach which is, I suggest, more rational and more candid than an unexplained, self-contradictory application of labels and effects.
Today’s majority represents an attempt to end Zukow *34 sky’s beginning and a return to the prior state of “result decrees,” unfettered by recognition of a need to be reasonably consistent. No effort is made by the majority to engage in a discussion of the Zukowsky rationale, nor to grapple with the considerations and problems therein discussed, nor to put forward any alternative analysis. Instead, the majority has chosen a power-expedient of ignoring the case. If our efforts in that case to come to grips with the problems are to be thus cast aside, I can only voice protest and observe that it deserves a more judicious demise.
I dissent.
Stafford, J., concurs with Neill, J.
Petition for rehearing denied September 11, 1972.