A trial court confirms that res ipsa loquitur is only available in certain, limited circumstances with respect to professional liability. Though a medical malpractice case, I believe that Leigh v. Schwartz, and the decisions made prior thereto, have application to other professional negligence cases.
The Leigh case, dated March 7, 2016, was a post-trial memo by Judge Wilson. At issue, in part of the decision, was whether the expert could infer that the type of injury evidenced a deviation from the standard of care. The defendants claimed that the plaintiff had improperly advanced a theory based on res ipsa loquitur, as it was not pled in the complaint. The plaintiff disagreed, arguing that it presented a malpractice theory that was allowed in the Supreme Court decision, Wilcox v. Schwartz.
Judge Wilson noted that even though it is not an independent cause of action res ipsa loquitur must be pled in Connecticut. The judge also reflected the obvious tension between a res ipsa theory in the context of a medical malpractice case, where an expert must opine that the alleged deviation of care caused the injury. The court noted that there is a split of authority in the Connecticut trial courts as to whether res ipsa loquitur is available for a medical malpractice case.
The court examined Wicox, wherein an expert opined that the evidence of the injury was such that it was very unlikely to have occurred but for some professional negligence. The judge agreed that res ipsa is usually only available in cases of so-called gross negligence or negligence that is obvious from the jury’s every day experience.
The court provided that the Leigh case was not based upon res ipsa loquitur. Instead, the court found that the real issue was whether the expert could draw the inference that, within a probable degree of medical certainty, the type of injury that occurred would not have occurred but for some deviation from the standard of care. The prohibition against using res ipsa is that a jury would be allowed (maybe even encouraged) to engage in speculation and use conjecture. The court, however, allowed the expert to use an inference that there must have been negligence due to the type of injury compared to the type of procedure. Simply put, the court allowed the expert to “infer that a physician deviated from the standard of care based solely on the occurrence of the injury.”
This appears to be a reasonable conclusion, when judged against the holding in Wilcox. In my opinion, however, it very much blurs the line. A jury is not allowed to decide a medical malpractice case based on res ipsa loquitur. An expert, however, can effectively make an opinion that contains all the elements of res ipsa loquitur, which the jury can choose to accept. Frankly, it seems to create a distinction without much difference.
For other professionals, I believe this may also be employed. It is more difficult in the context of legal or accounting professions. It may, however, be used by financial and, more likely, architectural malpractice. Of course, there are ways to counter such expert opinions, but I believe that this holding could allow the introduction of res ipsa loquitur through the back door.
Please note that Leigh v. Schwartz appears to be on appeal. If the Appellate Court makes a decision on this issue (as there were other issues raised), I will write on here.
Connecticut Professional Liability Law 