Orkin v. Holy Cross Hospital of Silver Spring, Inc.

⁴³¹ McAULIFFE, Judge. The question of the applicability of the concept of res ipsa loquitur is involved in this medical malpractice case. Contrary to the view taken by the trial judge, however, resolution of that question is not dispositive of this case. To some extent, the problem is one of semantics.

As we pointed out in Meda v. Brown, 318 Md. 418 , 569 A.2d 202 (1990), filed today, the proper application of res ipsa loquitur will permit an inference of negligence, but not every inference of negligence involves res ipsa loquitur. As was the case in Meda v. Brown, supra, it is important to distinguish between: 1) the inference of negligence that may properly be drawn by an expert, but could not properly be drawn by a lay juror, and 2) the inference of negligence that may properly be drawn by a lay juror from the facts, unaided by expert testimony. Of the first, it might be said that “the thing speaks for itself,” at least in terms of what the facts say to the expert. But that may be said of inferences in general, and yet it is not res ipsa loquitur as we know that concept in the law of negligence.

In the strictest sense, res ipsa loquitur is limited to those instances where, certain criteria having been met, the trier of fact may draw an inference of negligence from the facts alone. Irene Ruth Orkin underwent surgery, under general anesthesia, at Holy Cross Hospital, for a repair of a perforated ulcer. The surgeon was Dr. Leonard Deitz, and the anesthesiologist was Dr. Yilmaz Yamaner. Dr. Yamaner supervised the positioning of the patient before and during surgery.

The operation began at 2:55 p.m. and ended at 4:15 p.m. Mrs. Orkin was in the recovery room from 4:20 p.m. until 8:45 p.m., and was then admitted to the intensive care unit. Five and one-half hours later, Mrs. Orkin complained of numbness of her right fingers, and she was unable to dorsiflex her right wrist. She has been diagnosed as having suffered an injury to the median, ulnar, and ⁴³² radial nerves on the right side.

She contends that her injury is permanent. Mrs. Orkin filed a claim with the Health Claims Arbitration Office against Holy Cross Hospital, Dr. Deitz, and Dr. Yamaner. She later dismissed her claim against Dr. Deitz, and the panel found in favor of the remaining defendants. Mrs. Orkin rejected the award and filed suit in the Circuit Court for Montgomery County, against Dr. Yamaner 1 and the hospital.

The defendants filed a motion for summary judgment, and the parties submitted an agreed statement of facts to the trial judge. They agreed, among other things, that: [An injury of the type suffered by the plaintiff] is most probably caused by pressure on the area under the armpit. Such pressure can occur if the patient is positioned for a period of time long enough to interrupt the blood supply to the nerves. The records and testimony of the participants in the surgery and subsequent care do not reveal that the patient was malpositioned at anytime during her hospital stay up to the time of the discovery of her injury.

That the plaintiff cannot ascribe a time certain when the injury occurred. The plaintiff further agreed that she could not “ascribe a particular negligent act to any defendant.” She said that her theory of negligence was “based on the fact that she was admitted for abdominal surgery and sustained a positional injury.” In her opposition to the defendants’ motion for summary judgment, the plaintiff argued that res ipsa loquitur was applicable. In discussing the requirement that the casualty be of a sort which usually does not occur in the absence of negligence, she proffered proof of that requirement ⁴³³ through the testimony of Dr. Francis J. Mayle, a neurologist. At oral argument of the motion for summary judgment, the parties argued two principal points: 1) whether res ipsa loquitur was available to the plaintiff under the holding of Hans v. Franklin Square Hosp., 29 Md.App. 329 , 347 A.2d 905 (1975); and, 2) whether res ipsa loquitur could be applied in any event because the plaintiff could not show whether the injury occurred when she was under the control of the anesthesiologist or when she was under the control of the hospital’s employees.

The trial judge reached the first point only. She said: n accordance with the opinion and based solely on the authority of Hans versus Franklin Square Hospital, I grant the Motion of the Defendant for Summary Judgment____ The plaintiff appealed, and we granted her subsequent petition for certiorari before the case was considered by the Court of Special Appeals. We shall vacate the judgment below, and remand the case for further proceedings. The trial judge would have been correct in granting summary judgment for the defendants if the plaintiff had agreed that she could not or would not produce expert testimony.

This is not an “obvious injury” case. Resolution of the issues of negligence and causation involved in a case of this kind necessarily requires