The opinion
HOFFMAN, Judge,
dissenting:
I join the majority in its assertion that the doctrine of res ipsa loquitur may be applied to medical malpractice cases under appropriate circumstances. Gilbert v. Korvette’s Inc., 457 Pa. 602 , 327 A.2d 94 (1974); Restatement (Second) Torts § 328D. See Ybarra v. Spangard, 25 Cal.2d 486 , 154 P.2d 687 (1944). I concur in the majority’s conclusion that the case at bar is not such a circumstance. Because plaintiff failed to join Dr. Rohrabaugh as a defendant, I believe that plaintiff cannot take advantage of the doctrine. In Braccia v. Coca-Cola Bottling Co. of Philadelphia, 398 Pa. 386 , 157 A.2d 747 (1960) plaintiff was injured by an exploding bottle he bought from a retailer. Earlier that day, defendant bottler had delivered the bottle in question to retailer. Plaintiff sued only the bottler and not the retailer. Our Supreme Court held that by not suing the retailer jointly with the bottler, plaintiff could not take advantage of the doctrine of exclusive control in Loch v. Confair, 372 Pa. 212 , 93 A.2d 451 (1953). As the Court explained, there is only “a tenuous distinction . . . between the doctrine of res ipsa loquitur and the exclusive control doctrine.” Id., 372 Pa. at 216 , 93 A.2d at 453 . In the instant case, I find no direct evidence that Dr. Beittel caused plaintiff’s injury and nothing in the record to eliminate Dr. Rohrabaugh as an equally probable cause. Hence, it was sheer speculation on the part of the jury to find liability against Dr. Beittel. Moreover, to remand for new trial, as the majority mandates, is an exercise in judicial futility. Accordingly, I would grant Dr. Beittel a judgment n. o. v. See Braccia, supra.