dissenting:
I am not in agreement that the trial court was correct in directing the verdict against the plaintiffs on those counts relying on the doctrine of res ipsa loquitur. The opinion holds that Dr. Wilson’s testimony was insufficient to allow this case to go to the jury. It is true that he did not state, using any magic words, that the result obtained had to be predicated upon negligence, nor is he required to. The plaintiff need not conclusively establish negligence or causation-in-fact to invoke the doctrine. Such proof would obviate the purposes and policy behind shifting the burden of coming forward with the evidence to the defendant.
The plaintiff need only prove that the occurrence is such as in the ordinary course of things would not have happened if the party exercising control had used proper care. In this case the plaintiffs did establish that the result obtained here was a rare and unusual complication of a hysterectomy, that the result obtained was not one to be normally expected. Under the oft-quoted standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494,229 N.E.2d 504, a verdict based upon that testimony could stand and the trial court was in error in directing a verdict.
When a surgeon operates on a patient and a result is obtained that is unusual, unexpected, or one that is a rare and unusual complication of the surgical procedure, it may well be that the undesired result is not the result of negligence or of any want of professional competence. It may be that it is. In any event, in such circumstances, it is the surgeon, not the patient, who has the knowledge and the resources available to establish and explain the rare and unusual results. Under the familiar aspects of res ipsa loquitur, the posture of this case was and should be that the surgeon had the burden of going forward with the evidence.
I would reverse the judgment of the trial court and remand for a new trial on those counts relying on the doctrine of res ipsa loquitur.