“Even where * * * a basis of common knowledge is lacking, * * * expert testimony may provide a sufficient foundation * * *.”
How later courts described this case
- “Even where * * * a basis of common knowledge is lacking, * * * expert testimony may provide a sufficient foundation * * *.”
- the “most obvious illustration of the use of the doctrine [of res ipsa loquitur\ in medical malpractice cases is, of course, where a foreign object, such as a sponge or a needle, is left in the patient’s interior at the time of surgery”
- exclusion of two ' allegations of negligence held proper because they were merely elaborate duplications of another allegation of negligence which was submitted
- in medical malpractice action, causation can be proven indirectly, and the doctrine of res ispa loquitur can apply
Written by the judges who cited it.
Later courts went against this
Questioned on other grounds by Arrowood Indemnity Co. v. Fasching, 369 Or. 214 (2022)
240 Or 196, 214 , 400 P2d 234 (1965), questioned on other grounds by Arrowood Indemnity Co. v. Fasching, 369 Or 214 , 503 P3d 1233
The opinion
O’CONNELL, J.,
concurring.
I join in Mr. Justice Leneoke’s specially concurring opinion.
I also wish to register by disapproval of the manner in which the majority opinion deals with the problem of causation and negligence. The opinion states, “From the evidence that the defendant was negligent in failing to place a pillow under the plaintiff’s head when the anesthetic was administered, in accordance with the standard practice, a legitimate inference might be drawn that this omission was the proximate cause of the injury sustained by the plaintiff, since this precaution is taken to avoid the danger of the anesthetic ascending the spinal canal.” This states that an inference may be drawn from defendant’s negligence to the conclusion that the negligence was the proximate cause of the injury. I recognize that this formula of negligence and “proximate cause” has the blessing of this court. I still insist as I did in Dewey v. Klaweness, 233 Or 515, 519 , 379 P2d 560 (1963) that the use of the formula serves no good and invites confusion. I would state the problem in the present case as follows: Was the plaintiff’s paralysis caused by the failure of defendant to put a pillow under plaintiff’s head (i.e., was it a substantial factor *239 in bringing about this result) and if so, was defendant’s conduct negligent?
If we, on this court, do not clarify our language and thinking with respect to negligence and causation, we cannot expect the trial courts to make an effort to do so and consequently the confusion that characterizes this area of the tort law is perpetuated.