(Dissenting).
The crux of the majority’s opinion is that plaintiff’s tendered instruction was not a res ipsa instruction because the first element begins after the res ipsa bridge is crossed, and therefore the instruction is nothing more than a dressed-up negligence instruction, an “unnecessary crutch” to reach the issue of negligence. I cannot agree with the majority’s formulation because (1) as I understand res ipsa loquitur, it is merely one form of circumstantial evidence; (2) as a form of circumstantial evidence, a plaintiff is permitted to rely on res ipsa loquitur although he or she attempts to prove, and may be successful at proving, specific negligence; (3) the tendered instruction did nothing more than instruct the jury on plaintiff’s theory of the case with reference to the specific negligence that plaintiff attempted, obviously unsuccessfully, to prove; (4) the formulation of the instruction was invited by the format of SCRA 1986, 13-1623; and (5) the majority opinion appears to read plaintiffs requested instruction in an unnecessarily technical fashion.
When res ipsa loquitur applies to a case, it is as one form of circumstantial evidence. Schmidt v. St. Joseph’s Hosp., 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct.App.1987). Res ipsa loquitur requires plaintiff to establish that (1) the instrumentality causing the injury is in defendants’ exclusive control, and (2) the injury is of a kind that does not ordinarily occur in the absence of negligence. Id.; UJI Civ. 13-1623. If the predicate facts are established, the jury can infer both negligence (duty and breach, see Restatement (Second) of Torts § 328A (1979)) and causation, see id. § 328D cmt. b at 157.
The majority finds fault with plaintiff’s rendition of the first element of the uniform jury instruction. The fault appears to be that it is too specific in its description of the instrumentality causing injury. I do not believe that including a specific description in the res ipsa instruction turns the instruction into a “pedestrian proposition for which no special instruction is necessary.” Nor do I agree with defendant’s argument that plaintiff’s use of the words “inadequate protection” violates the UJI directions requiring plaintiff to describe the “instrumentality” causing her harm in the instruction. The uniform jury instruction requires plaintiff to name the “instrumentality or occurrence” that “proximately caused” her injury. UJI Civ. 13-1623. For plaintiff to have filled in the blank with a description of what her expert said caused her injury seems, to me, to be appropriate. In any event, I do not believe that this court can say it is inappropriate in light of the rule prohibiting us from finding fault in uniform jury instructions. See State v. Jennings, 102 N.M. 89, 691 P.2d 882 (Ct.App.1984).
In my view, under the specific facts of this case, the only way plaintiff’s res ipsa instruction would be so poorly drafted as to justify denial would be if the first element encompassed all facts necessary to establish liability under a negligence theory. There is a line of cases, including Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956), and Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App.1970), that stands for the proposition that the doctrine of res ipsa loquitur is not available to a plaintiff who proves specific acts of negligence. The key word here is “prove” because it is equally well-established by these cases that plaintiff can introduce evidence of specific acts of negligence without “waiving” the right to rely on res ipsa loquitur.
I would agree with the majority if the first element of the instruction required plaintiff to “prove” her case of specific negligence. If that were the case, then a jury’s finding that plaintiff established the first element would negate her right to proceed on a res ipsa theory, according to Tuso and Harless. However, I do not believe it is possible to read the first element of plaintiff’s requested instruction as requiring the jury to find all the elements of a specific type of negligence.
The first element of plaintiff’s instruction requires the jury to find that plaintiff’s injury was caused by “inadequate protection” of her extremities while her condition was under defendant’s exclusive control. Plaintiff’s expert established, though not without contradiction, that the only way plaintiff’s neuropathy could have arisen would be from “inadequate protection”: ulnar neuropathy is caused by failure of the blood supply to the nerve, which in this case is caused by pressure on the nerve due to compression or stretching; in the operating room, pressure is caused by inadequate protection.
Plaintiff’s theory of the case instruction was considerably more specific as to what caused the inadequate protection. Plaintiff contended that defendant either (1) failed to properly position plaintiff’s arm, (2) failed to properly pad it, or (3) failed to properly observe that it became mispositioned during the surgery. While all of these theories are variations of a failure to protect the arm, they are analogous to the various methods in Harless, where negligence was shown in connection with why the wheels on a truck fell off. Yet, the plaintiff in Harless was entitled to an instruction on res ipsa loquitur.
My difference with the majority may be that I read “inadequate protection” as merely descriptive and not necessarily implying negligence, despite the use of the value-laden term “inadequate,” and despite Dr. Waring’s testimony that such inadequate protection is negligence. The majority’s retort, then, is that the instruction is ambiguous and, when an instruction can be read in one of two ways, one of which is meaningful (mine) and one of which is nonsensical or tautological (theirs), then the trial court does not err in failing to give the instruction. I agree with the majority’s premise that it is not error to fail to give an ambiguous instruction.
I disagree that their interpretation of the instruction is a natural one. I cannot see the necessity of several pages of explanation if the interpretation of the instruction is natural. It seems to me that the majority is reading the instruction in an unduly technical way and certainly not in the way that any lay jury would read it. I believe a lay jury would read the words “inadequate protection” as I do — as being merely descriptive of what happened to plaintiff during her anesthesia.
The function of res ipsa in this case is to permit the inference of both causation and negligence from the exclusive control of the instrumentality causing injury when the injury does not ordinarily occur in absence of negligence. Thus, here, the res ipsa instruction permits the jury to infer causation and negligence from defendant’s exclusive control of the protection of plaintiff’s extremities. The tendered instruction did inform the jury that it could draw this inference, and therefore it was a proper res ipsa instruction.
Nor do I believe that the requested instruction was an unnecessary crutch to reach the issue of negligence. An instruction on res ipsa loquitur counters other instructions and allows plaintiff’s counsel to argue what is established by expert testimony in this case: that the mere happening of an accident like this is evidence of negligence. The following discussion also shows why failure to give the requested instruction was not harmless.
In ordinary negligence cases, the jury is instructed that the mere occurrence of an accident is not evidence that someone has been negligent. SCRA 1986, 13-1616. On the other hand, if the case is appropriate for a res ipsa instruction, then once the jury finds the predicate facts, it is almost entitled to conclude that the mere happening of the accident does show negligence. Thus, the res ipsa instruction allows plaintiff’s counsel to explain to the jury, with approval from the judge, that the fact the accident happened can be evidence of negligence.
In medical malpractice cases, the equivalent of SCRA 1986, 13-1616 is SCRA 1986, 13-1112, telling the jury that doctors do not guarantee good results and the fact of a bad result is not evidence of negligence. In fact, defendant here closed his final argument by relying on this instruction. The res ipsa instruction would have allowed plaintiff to rebut this argument by relying on another instruction from the judge. That other instruction was plaintiff’s tendered instruction, which would have allowed the jury to infer specific negligence from the fact that the injury was caused by an instrumentality in defendant’s exclusive control (inadequate protection of plaintiff’s arm) because plaintiff’s expert testified that these injuries do not ordinarily occur in the absence of negligence on the part of the person in control. Instead, plaintiff was left to arguing that “bad result” cases involve only the organ on which the surgery was performed, thereby merely implying, without judicial approval, that it must be negligent to injure an arm when a patient is being operated on for a mastectomy.
In short, I believe that the majority has read plaintiff’s instruction in a way that attempts to unfairly lock plaintiff into a specific negligence theory. Then, the majority has used this reading to hold that her instruction was properly refused. I do not believe it is reasonable to read the instruction as the majority does. Thus, I do not believe that it is possible to read the instruction in one of two ways or that the instruction is ambiguous. I find that the instruction is meaningful as a more general res ipsa instruction and, accordingly, believe that the court erred in its failure to give it.
Because of this view, it is necessary for me to address issues the majority assumes without deciding: (1) whether res ipsa can be based on expert testimony, and (2) whether plaintiff established exclusive control. I believe the answer to both of these questions is “yes.”
Defendant contends that allowing the doctrine of res ipsa loquitur to be used in medical malpractice cases, upon the introduction of expert testimony of the foundational propositions, is an expansion of the doctrine which the New Mexico Supreme Court would not make. I disagree. Application of the doctrine of res ipsa loquitur based on expert testimony to cases such as this one is solidly grounded in the decisions of several other jurisdictions. E.g., Holloway v. Southern Baptist Hosp., 367 So.2d 871 (La.Ct.App.1978); Parks v. Perry, 68 N.C.App. 202, 314 S.E.2d 287 (1984); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134 (1981). Comment d to the Restatement (Second) of Torts Section 328D specifically notes that the basis of the res ipsa loquitur inference can be expert testimony. The Jones case, relying on the Restatement, and recognizing that the “ ‘law must be responsive to new conditions and to the persuasion of superior reasoning[,]’ ” Jones, 437 A.2d at 1138 (quoting Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 806 (1964)), adopted the position that res ipsa loquitur may apply to medical malpractice cases when either common knowledge or medical evidence establishes that the event does not ordinarily occur without negligence. In light of recent supreme court opinions, e.g., Bober v. New Mexico State Fair, 111 N.M. 644, 808 P.2d 614 (1991) (expanding premises liability to harm caused outside the premises); Collins v. Tabet, 111 N.M. 391, 806 P.2d 40 (1991) (adopting a functional analysis in determination of scope of immunity for guardians ad litem); Lovelace Medical Ctr. v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991) (permitting parents to recover costs of raising a healthy child bom as consequence of failed tubal ligation); Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990) (adopting prima facie tort), I have no doubt that our supreme court would readily adopt the Restatement position in this case.
Defendant contends that plaintiff has not established the requisite exclusive control for the doctrine of res ipsa loquitur to apply. Defendant relies on cases which state that the requisite control must be absolutely sole control. E.g., Waterman v. Ciesielski, 87 N.M. 25, 528 P.2d 884 (1974); Begay v. Livingston, 99 N.M. 359, 658 P.2d 434 (Ct.App.1981), rev’d on other grounds, 98 N.M. 712, 652 P.2d 734 (1982). I do not believe that either these cases or those others cited in the comment to UJI Civ. 13-1623 are applicable. See State v. Scott, 90 N.M. 256, 561 P.2d 1349 (Ct.App.1977) (court of appeals may consider whether supreme court precedent is applicable).
In the first place, for the reasons noted above in connection with my discussion of expert testimony, I believe the supreme court would adopt the Restatement’s view that exclusive control is but one way of proving the necessary responsibility on the part of the defendant for res ipsa to apply. Restatement (Second) of Torts § 328D cmt. g at 161-62. In the second place, the tenor of plaintiff’s expert’s testimony was that it was ultimately the responsibility of the anesthesiologist to insure that plaintiff’s arm was properly padded and positioned, and that the padding and positioning was maintained despite the fact that others present at the operation may have accidentally moved the arm. The fact that this testimony may have been called into question by another doctor did not mean that plaintiff did not establish a factual basis for the giving of her requested instruction. See Thompson Drilling, Inc. v. Romig, 105 N.M. 701, 736 P.2d 979 (1987).
The simple fact of this case is that plaintiff proved facts entitling her to proceed to the jury on a res ipsa theory. She tendered an instruction conforming to the uniform jury instruction model. Because the instruction was not given, defendant had the unfair advantage of being allowed to argue to the jury, without judicially-sanctioned rebuttal from plaintiff, that the jury could not find negligence just because plaintiff was injured, although the sense of Dr. Waring’s testimony and the function of res ipsa loquitur under the facts of this case were precisely to permit that inference of negligence.
Accordingly, I would reverse and remand for a new trial.