Alert
Bloom & Buell's

IF LOGIC FAILS YOU, TRY SOME LATIN

In the late and unlamented Soviet Union, law enforcement and jurisprudence were simple processes: if you happened to be near the scene of a crime, or if you could have committed it, you were guilty. In fact, jurisprudence and law enforcement were indistinguishable.

Unlike this blessed country, you say? Not so fast!

Criminal justice in this country has always been heading in the opposite direction and by now even with a video of the crime in progress a jury won't convict.

Not so in civil practice. A recent Massachusetts Appeals Court decision in a medical malpractice case says in effect that if a patient discovers damage near where a surgeon had operated, it must have been the surgeon who caused it, even if there is no evidence that he or she caused it.

The Appeals Court has applied the doctrine of res ipsa loquitur, Latin for "the thing speaks for itself," to the practice of surgery.

It seems that a young woman had a bad skiing accident, needed knee surgery and finally needed to have a ligament replaced.

The surgeon had to drill holes in both the tibia and the femur, or shin and thigh bones. Shortly thereafter the woman discovered that there was a severed artery and a severed tibial nerve. In addition, a perineal nerve had been damaged.

The artery was repaired, but the nerve repair left her with numbness, and she sued. The jury gave her nothing, deciding that the surgeon had not been negligent.

Her attorney appealed, saying the trial Judge was wrong to refuse to instruct the jury to use a layman's common sense. Under the doctrine of res ipsa loquitur, the lawyer argued, the judge should have told the jury they could infer that there had been negligence, even though there was no evidence that the surgeon had acted negligently.

In other words, the surgeon was there, so it must have been he who did it. The Appeals Court agreed and has ordered the case tried again. The woman's attorney also complained to the Appeals Court that the trial judge had refused to let him argue that there was a "conspiracy of silence" among Massachusetts physicians who covered for one another and obliged him to import an itinerant expert from New Jersey. (He should complain! An attorney defending a child molester some years ago had to go all the way to California to get an expert who would say what he wanted.)

But the Appeals Court agreed with the trial court on this one, saying the New Jersey expert was not qualified to testify about conspiracies in Massachusetts. He barely knew what other doctors were up to in New Jersey since he spent most of his time on the road testifying for money. Have diploma, will travel, and will testify, just in case the thing does not speak for itself. As the Romans would have said, res non ipsa loquitur.

For more information regarding this alert, contact Bloom & Buell via e-mail or call (617)254-4400 or write 1340 Soldiers Field Road, Boston, MA 02135.


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