Haddock v. Arnspiger

DOGGETT, Justice,

dissenting.

Prior to this cause, there had been no reported case in the history of Texas jurisprudence denying a victim of alleged medical malpractice the right to utilize expert testimony as a predicate for a claim based upon the doctrine of res ipsa loquitur. Because I disagree with the court’s decision that section 7.01 of the Medical Liability and Insurance Improvement Act, Tex. Rev.Civ.Stat.Ann. art. 4590i (Vernon Supp. 1990), can be read to create a bar to such testimony, I dissent.

I agree that it would certainly be unfair to hold a medical professional liable for misconduct based solely upon lay testimony and a bad physical result except in the narrowest of circumstances. When predicated upon lay testimony, the doctrine has been very appropriately limited to circumstances where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen so that no expert testimony is required. 1 In the cases upon which the court relies to bar expert testimony, however, recovery was not predicated upon evidence from a medical professional.

The use of expert testimony to establish res ipsa loquitur is not a new concept in Texas. Almost a century ago this court concluded that a res ipsa issue could be submitted to a jury upon “opinions of persons better informed than they were upon such matters.” McCray v. Galveston, H. & S.A. Ry. Co., 89 Tex. 168, 173 , 34 S.W. 95, 98 (1896). Once more in Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 252 (Tex.1974), we declared that such expert testimony “is clearly admissible and may be necessary to the plaintiff’s case.”

The courts of appeals have recognized a similar rule in actions against health care providers. Res ipsa loquitur, based upon expert testimony, was successfully employed in a medical malpractice action in Martin v. Eschelman, 33 S.W.2d 827, 829-30 (Tex.Civ.App.—Texarkana 1930, writ ref'd), when the plaintiff suffered burn injuries from an X-ray machine on a portion of his body not scheduled for treatment. Conversely, the absence of any medical testimony to establish that injury would not normally occur without negligence was noted as a reason for rejecting res ipsa in Irick v. Andrew, 545 S.W.2d 557, 559 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). The use of res ipsa has also been approved “where it is a matter of common knowledge among laymen or medical men, or both, that the injury would not have occurred without negligence.” Southwest Texas Methodist Hospital v. Mills, 535 S.W.2d 27, 30 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.) (emphasis supplied); accord Hamilton v. Sowers, 554 S.W.2d 225, 228 (Tex.Civ.App.—Fort Worth 1977, writ dism’d). Similarly, Louis v. Parchman, 493 S.W.2d 310, 321 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n.r. e.), and Shockley v. Payne, 348 S.W.2d 775, 780 (Tex.Civ.App.—Amarillo 1961, writ ref'd n.r.e.), indicated that res ipsa would be applicable with proper expert testimony. 2

*956 Texas appellate courts had thus addressed, on a number of occasions prior to the Act’s effective date, the use of proper expert medical testimony as a basis for establishing res ipsa loquitur. The court examines these cases in detail in an attempt to distinguish them, yet nonetheless is compelled to disapprove them “[t]o the extent that they may conflict with this opinion.” These cases were decided prior to the adoption of section 7.01, by which the legislature “froze” res ipsa loquitur in its then existing 1977 condition, and conflict with the court’s opinion because they recognize the applicability of res ipsa lo-quitur in a medical malpractice action.

If it had desired to narrow application of this procedural device, the legislature could have adopted precise language precluding the use of expert testimony to invoke res ipsa. The court today refuses to be bound by this legislative choice. I dissent.

SPEARS, RAY and MAUZY, JJ., join in this dissent.

. See, e.g., Roberson v. Factor, 583 S.W.2d 818 (Tex.Civ.App.—Dallas 1979, writ ref'd n.r.e.) (negligence in the use of mechanical instruments); Williford v. Banowsky, 563 S.W.2d 702 (Tex.Civ.App.—Eastland 1978, writ ref'd n.r.e.) (operating on the wrong portion of the body); and Harte v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref'd n.r.e.) (leaving surgical instruments or sponges within the body).

. Commentators have uniformly recognized the applicability of res ipsa loquitur in two situations: (1) when the facts easily demonstrate negligence and the subject matter is within the common knowledge of laymen, and (2) when medically complex issues are presented and ex *956 pert testimony could establish that the injury does not normally occur without negligence. Perdue, The Law of Texas Medical Malpractice, 22 Hous.L.Rev. 1, 214 (1985). J. Edgar, Jr. and J. Sales, Torts and Remedies, § 11.05[3][c] at 11-98 (1989) also notes that medical expert testimony may provide a foundation for the use of res ipsa loquitur. W. Keeton, Prosser and Keeton on Torts, § 39 at 257 (5th ed.1984), explains that "medical experts may provide a sufficient foundation for res ipsa on more complex matters, with testimony that the plaintiffs particular adverse result does not ordinarily occur when due care is used.” See also, J. Lee and B. Lindahl, 2 Modem Tort Law — Liability & Litigation 346, 349-50 nn. 37-38 (rev. ed. 1989); F. Harper, F. James & O. Gray, 4 The Law of Torts § 19.6A at 40-41 (2d ed.1986).