For unknown reasons, a woman’s arm is disabled after ovarian surgery.

Dr. K is an experienced anesthesiologist who has spent years in patient care as well as teaching medical students and residents in a large university hospital. During his tenure, he has taught a number of courses in medical ethics and legal medicine, but this expertise could not help him when a patient complaining of an injured arm with no apparent cause embroiled him in an unusual malpractice suit.

The 45-year-old woman had undergone surgery for removal of an ovarian cyst. During the successful procedure, anesthesia was administered through an IV line placed in her right arm, which had been positioned on a board extending 90° from the operating table to allow another IV line into the back of her hand. The woman felt some burning in her hand during the induction of anesthesia but was soon completely under sedation and intubated for surgery.

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When the patient awoke in the recovery room, she immediately complained of pain and numbness in her arm and shoulder. Over the next few weeks, the pain worsened, and she developed disability in her arm. This progressed over the next several months to the point that she developed thoracic outlet syndrome and reflex sympathetic dystrophy. These conditions combined to result in severe disability in the woman’s right arm, despite intensive rehabilitation.

She soon consulted a plaintiff’s attorney, who called for her hospital records and had them reviewed by an anesthesiologist. The expert felt that although he could not tell who was at fault, such injuries to the arm are unlikely unless a problem has occurred during surgery. He could not say what happened, however, since there was no documentation of any unusual event.

The plaintiff’s lawyer needed to find a legal strategy to fit this opinion. He eventually filed a malpractice suit against the hospital, Dr. K, and every other clinician working in the operating room at the time. His basic argument was that at least one of these individuals was at fault, and he didn’t care which one it was. Dr. K was extremely puzzled when he received notice of the lawsuit against him and could not follow the plaintiff’s lawyer’s thinking.

During the depositional phase of the case, the patient and all the clinicians testified that nothing abnormal had happened during the procedure and that they were all mystified by the appearance of a brachial-plexus injury. The plaintiff’s expert agreed that there was no evidence of malpractice except that brachial-plexus injuries do not just occur on their own; someone had to be at fault.

The defense lawyer and the insurance company adjuster met after the depositions were over and discussed what to do next. There seemed to be insufficient evidence to find any of their clients guilty of malpractice, so they decided to file a motion to dismiss the case.

The entire matter came to a head when the hospital’s motion to dismiss was answered with a motion by the plaintiff’s lawyer to consider the case under the theory of res ipsa loquitur (literally, the thing speaks for itself ). Under this theory, a jury can infer negligence given certain circumstances, even in the absence of direct proof. The judge denied the defense motion to dismiss and accepted the “indirect proof” theory of the plaintiff’s lawyer.

This decision was appealed all the way to the state supreme court, which let the decision stand, based on the testimony of the plaintiff’s expert that such an injury was not possible without malpractice. The case was referred back to the trial court for a jury to decide. Faced with a very unfavorable outlook, the defense team settled for $510,000.

Legal background

The legal theory of res ipsa loquitur began in English common law in 1863 when a man was struck by a barrel of flour falling from a storage loft, with no apparent cause. The court ruled that a barrel falling out of a second-story window is itself sufficient evidence of negligence. The legal principle is now used in a wide variety of situations to attribute fault when there is no direct evidence of wrongdoing, only the assertion (supported by expert testimony if necessary) that such things do not happen otherwise.

Protecting yourself

The res ipsa loquitur doctrine removes the need to prove guilt or liability, allowing a jury to proceed directly to the assessment of damages. Blame is usually assigned to everyone present at the time of the incident, which calls the risk-management concept of teamwork into question. When it comes to legal liability, a physician is, in fact, his brother’s keeper, and the team sinks or swims together. This is based not only on the practical effects of res ipsa loquitur, but on studies that show mistakes and errors in judgment are far less common in a team-based approach than in a hierarchical, individualized approach.

Patients occasionally suffer mysterious complications with no apparent cause, but such situations present a definite risk of litigation and loss, similar to complications with more obvious causes (such as an allergic reaction to dye). Clinicians are sometimes remiss in reporting “causeless” complications to their risk manager and insurance company in the mistaken belief that there will be no legal consequences because there is no apparent connection between clinician and complication. As this case illustrates, nothing is further from the truth. The law often works in counterintuitive ways.