IN THE SUPREME COURT
STATE OF NORTH DAKOTA
DISTRICT COURT NO. 04-C-558
SUPREME COURT NO. 20050310
|BioLife Plasma Services, f/d/b/a||)|
APPEAL FROM THE DISTRICT COURT
SOUTH CENTRAL JUDICIAL DISTRICT
BURLEIGH COUNTY, NORTH DAKOTA
THE HONORABLE BRUCE B. HASKELL
BRIEF OF PLAINTIFF/APPELLANT
|Robert V. Bolinske|
|(ND I.D. No. 03266)|
|ATTORNEY AT LAW|
|Attorney for Plaintiff/Appellant|
|515 North 4th Street|
|Bismarck, ND 58501|
TABLE OF CONTENTS
|Table Of Authorities...||i|
|Issue Presented for Review..||ii|
|I. Introduction and Procedural Background...||1|
|II. Factual Background...||3|
|III. The Doctrine of Res Ipsa Loquitur...||12|
|IV. This Case Involves "Ordinary Negligence" Rather Than "Professional Negligence"....||19|
|V. Analysis: Application of Res Ipsa Loquitur to the Facts of this Case||23|
TABLE OF AUTHORITIES
|Foerster v. Fischback-Moore, Inc., 178 N.W. 2d 258 (ND 1970)....||15|
|Robert v. Aircraft Inv. Co., Inc., 1998 ND 62, N.W.2d 672..||17|
|Investors Real Estate Trust Properties v. Terra Pacific Midwest,|
|2004 ND 167, 686 N.W.2d 140.||18, 22, 23, 25, 26|
|Victory Park, 367 N.W.2d at 159-60||22, 25, 26|
|Jilek vs. Berger Elec., Inc., 441 N.W.2d 660 (ND 1989)....||19|
|Kuntz vs. Muehler, 1999 ND 215, 603 N.W.2d 43 (ND 1999)..||19|
|Sime vs. Tvenge Assoc. Architects, 488 N.W.2d 606 (ND 1992)...||20|
|Winkjer vs. Herr, 277 N.W.2d 579 (ND 1979)..||22|
|Wasem vs. Laskowski, 274 N.W.2d 219 (ND 1979)....||22|
|N.D.C.C. Chapter 43-48||20|
|N.D.C.C. 43-48-01 (3).||20|
|N.D.C.C. 43-48-03 (6) 20|
|American Jurisprudence 2d.||12|
|Restatement of the Law of Torts....||15|
|Prosser Torts 3rd Ed. ....||16|
|57 B Am. Jur.2d. 1867||28|
ISSUE PRESENTED FOR REVIEW
I. Did The Trial Court Err In Refusing To Instruct The Jury On The Doctrine Of Res Ipsa Loquitur When Plaintiff Offered Probative Evidence On Each Foundational Fact Necessary For Submission Of That Issue To The Jury?
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiff Rhonda Haugen was injured on January 17, 2001, by the negligence of the defendant BioLife's employees while Ms. Haugen was donating plasma. As a result of defendant BioLife's negligence, Ms. Haugen developed an extremely painful and debilitating condition known as Reflex Sympathetic Dystrophy in her right arm.
Plaintiff Haugen contended at trial that defendant BioLife (acting through it's employees) was negligent in (1) improper placement of the needle during the plasma donation, (2) failing to properly monitor Ms. Haugen during the plasma donation and (3) failing to properly train it's employees.
The case proceeded to trial on June 21, 2005, before a jury of 9 members, with the Honorable Bruce B. Haskell presiding. Despite evidence establishing all necessary foundational facts for application of the doctrine of res ipsa loquitur, Judge Haskell refused to give plaintiff's requested Res Ipsa Loquitur instruction. After a 3 day trial, the jury returned a Special Verdict in which it found no negligence on defendant BioLife's part. Judgment was accordingly entered and this appeal followed. (App. pp. 17-18; 19)
Baxter Healthcare Corp. was originally identified in the caption of the case as a defendant, but was never actually served with process in as much as it was determined not to have any involvement in the case. Consequently, the parties agreed and the trial court ordered that Baxter Healthcare be dismissed from the case. The original order to this effect was verbal only, but the case was eventually returned by the North Dakota Supreme Court to the District Court on a limited remand for the purpose of obtaining a written Order of Dismissal and Judgment of Dismissal of Baxter Healthcare Corp.. (App. 21;22)
II. FACTUAL BACKGROUND
On January 17, 2001, plaintiff Rhonda Haugen, a 57 year old woman, was injured when she donated plasma at the place of business of defendant Community Bio-Resources, located in Bismarck, North Dakota. Community Bio-Resources is now doing business as BioLife Plasma Services.
Plasma is the liquid portion of our blood which helps red blood cells, white blood cells, and platelets travel through the circulatory system. Plasma is composed of water and proteins. The proteins in plasma help the body control bleeding and infection. (Pls. Exh. 2, p.2)
The process of plasma donation takes approximately one hour. Blood is extracted from the arm of the donor through a needle inserted into a blood vein. The blood is then transferred through a network of tubing into a computerized, automated machine. The machine separates the plasma from the whole blood and the plasma is drawn into a container. While the plasma is being collected, the other blood elements such as red blood cells, white blood cells and platelets, are filtered into a separate reservoir. When that reservoir is full, the machine stops automatically collecting plasma and returns the stored red blood cells, white blood cells and platelets to the donor through the same needle and tubing system. Once all of the cells have been returned, the machine will again begin the process of collecting plasma. The cycle of collecting plasma and red blood cells will continue until the preprogrammed volume of plasma has been collected. (Pls. Exh. 2, p.3)
Plaintiff Haugen, at trial, contended that when she donated plasma on January 17, 2001, defendant's employees either (1) failed to properly insert the needle into Ms. Haugen's vein and instead pushed the needle through the vein into surrounding tissue or (2) failed to observe that the needle in Ms. Haugen's right arm became displaced during the plasma donation and instead of returning the whole blood elements (red blood cells, white blood cells and platelets) into her vein, the misplaced needle instead infused those blood products under pressure outside of the vein and into surrounding tissue. (Kihtir depo. pp.40-43; 44-45; 60-61; 64-65.) (Dr. Kihtir testified at trial by way of video deposition. All page references to her testimony are to the page numbers of Dr. Kihtir's deposition itself. Dr. Kihtir's deposition begins at page 26 of the Plaintiff/Appellant's Appendix. This numbering system was followed because, as the Court will note, her deposition is in the condensed form with 4 pages of deposition transcript placed on one 81/2x11 page.)
The infusion of blood into the soft tissue of Ms. Haugen's arm, according to Dr. Kihtir, resulted in a significant amount of bruising and swelling to her right arm, which became extensively black and blue following the plasma donation. (T.pp. 38-46)(Kihtir depo. p. 41) Photographs of Ms. Haugen's black and blue right arm are contained in Plaintiff's Appendix at pp. 23 and 24. (Pl's. Exh. 16 and 17) That condition occurred only a "couple days" after the plasma donation. (T. 38) The actual photographs were taken on February 20, 2001, approximately one month after the January 17, 2001, donation. (T. p. 45) The "black and blue" condition of Ms. Haugen's right arm continued into July, 2001, and did not completely disappear until September, 2001, some 8 months later. (T. p. 46)
Following the plasma donation, Ms. Haugen developed a continuous dull, at times burning, tingling, cramping pain along her right arm. (Kihtir depo. pp. 58-59) This pain has been continuous and has gotten worse over time. (T. pp. 54, 58-60; 70,72) Ms. Haugen has also experienced a coolness in her right hand and arm and color changes which vary from severe paleness to a purplish tint. (T.pp. 48-51) She also has experienced numbness and significant weakness in her right forearm and hand. (T. 48-51)
Rhonda Haugen's condition has been diagnosed by her physician, Dr. Sena Kihtir, as Reflex Sympathetic Dystrophy, abbreviated "RSD". RSD is a localized regional pain disorder which may be associated with swelling, sensitivity, (called allodynia hyperesthesia), color changes and temperature changes. If left untreated, and if severe enough, RSD can cause other serious problems, including, as occurred in Ms. Haugen's case, permanent chronic pain. That pain is the result of damage or injury to the sympathetic nerves which are the very fine nerves that affect sensitivity to even very superficial touch. For example, if one has a specific injury like a sprain, the sympathetic nerves are the nerves which activate. The acute swelling, pain, and tenderness which accompany a sprain are usually the result of sympathetic nerve discharge. With time that pain normally lessens. In RSD, however, the sympathetic pain sensation does not stop and an acute injury turns into chronic pain syndrome. (Kihtir depo. p.47)
Ms. Haugen's treatment for this condition has required numerous extremely painful stellate blocks, which are injections with a needle inserted into the front of her throat, carefully maneuvered through her throat and then back into her spinal cord area. (Kihtir depo. pp. 46-49) The stellate ganglion is a nerve bundle that runs along side the front of the spinal canal that affects the sympathetic nerves in part of Ms. Haugen's face and also her arm. The right-sided stellate ganglion affects the right arm and usually the right side of the face. These are not the same as the nerve roots that exit the spinal canal behind the disks. Blocking the stellate ganglion is a way of blocking the sympathetic nerve outflow, which is basically blocking the sympathetic nerves. When Dr. Kihtir does a sympathetic blockade, in Ms. Haugen's case, the sympathetic nerves in her arm are blocked in the stellate ganglion nerve bundle. The purpose of the block is to stop the continuous arc or circle of pain. (Kihtir depo. pp. 46-49)
When an injection is given and the patient has pain relief, the fact that pain relief occurs is also verification of the RSD diagnosis. Ms. Haugen reported temporary pain relief of approximately 80% after her injections. The pain relief a patient experiences varies from patient to patient and the time period of pain relief also varies. The injections do not cure RSD (the non-stop circle of pain) but they do provide a period of at least some pain relief. (Kihtir depo. pp. 47-49) At different stages of RSD there are different limitations and/or different amounts of pain. RSD can develop to the point where there is such severe and constant pain that the individual can not even touch their hand. Treatment then involves attempting a desensitization process, which is part of physical therapy. Ms. Haugen has been treated with physical therapy and also with medication. (Kihtir depo. pp.48-49) Ms. Haugen's right hand, arm and shoulder area pain have returned after each stellate ganglion block. Dr. Kihtir testified that that was "very typical". (Kihtir depo. p.49)
Ms. Haugen had approximately 7 stellate ganglion block injections, but had to discontinue them because of the horrible side effects the injections caused. She describes the injections and side effects in the transcript at pages 66-70. As a result of not being able to have the injections, Ms. Haugen's condition has continued to worsen. (T.pp. 66-70)
In as much as Ms. Haugen's condition (which she described in her testimony and is well documented in her medical records) has persisted since January 2001 to the time of trial, Dr. Kihtir concluded that her condition was permanent. Dr. Kihtir also testified (1) that Ms. Haugen's condition constituted chronic pain syndrome, (2) that Ms. Haugen's RSD condition would never be cured, (3) that it was a permanent condition and (4) that Ms. Haugen would have chronic pain for the rest of her life. Dr. Kihtir testified further that since Ms. Haugen's chronic pain could not be cured, medical care could only attempt to manage it through physical therapy, physical activity, medication and at times injections. (Kihtir depo. pp. 49-52)
Dr. Kihtir testified that Ms. Haugen's symptoms of a continuous dull, at times burning, tingling, cramping pain along her right arm, were consistent with RSD. Dr. Kihtir also testified that the worsening of Ms. Haugen's condition and the coolness she experiences are also symptoms consistent with RSD. The coolness Ms. Haugen experiences is because damage or injury to the sympathetic nerves can affect circulation, which in turn affects body temperature. (Kihtir depo. pp. 58-59)
Dr. Kihtir further testified that Rhonda's reported and recorded description of color changes in her hand from severe paleness to, on occasion a purplish tint, are also consistent with RSD, as are her reports of numbness along her right forearm and hand. Ms. Haugen's symptoms of weakness in her right arm and hand which made it difficult to, for example, open cans or jars are also consistent with RSD. (Kihtir depo. pp. 59-60) Ms. Haugen is right-handed. (T. p. 54)
Ms. Haugen's RSD condition has caused her constant and significant pain in her right arm since the plasma donation occurred. It is a permanent condition from which she will suffer for the rest of her life. Ms. Haugen's RSD condition has affected every part of her life. She cannot perform her homemaking chores as she could previously and she is unable to enjoy even simple tasks such as Christmas baking and wrapping Christmas gifts without pain. It is also extremely difficult for her to function at her job. By way of example, her job requires her to do a lot of mailings. She often struggles with just taking one sheet of paper from a pile to do the mailing or to take one label off the label sheet. Any activity with her right arm causes even more pain following the activity. Weakness makes it difficult to use her right hand and arm, for example, in trying to twist open a bottle because her fingers do not function as they did previously. (T. pp. 73-78)
Ms. Haugen has also had to give up many physical activities such as riding her own motorcycle and engaging in many other recreational activities because of her injury. Her right arm condition also makes it difficult for her to sleep, causes her to suffer the effects of sleep deprivation and has caused problems with her relationship with her fianc. Cold weather makes her right arm pain much, much worse. (T. pp. 72-81)
Ms. Haugen contended at trial that her RSD condition was caused by defendant's negligence in (1) improperly placing the needle in her right arm (2) failing to notice that the needle had been improperly placed (3) failing to monitor her during the plasma donation process (4) allowing a significant amount of blood product to be injected under pressure into her right arm instead of being returned to her blood vein and (5) failing to properly train its employees.
In fact, one of defendant's employees, a registered nurse, became extremely upset when the incident had occurred and told Ms. Haugen that she had been telling defendant BioLife that it would have to do a better job training its technicians. (T. p. 43)
Defendant BioLife also promised to pay Ms. Haugen's medical bills but reneged on that promise after paying only some $350.00. Instead of paying as promised, her case was sent off to defendant BioLife's legal department. (T.pp.44; 57-58; 233-4) Defendant BioLife's manager also agreed that Ms. Haugen's black and blue condition was "pretty bad bruising" and not a "normal" reaction from the typical donation. (T.pp. 231-232)
Defendant BioLife at no time warned Ms. Haugen that plasma donation could lead to RSD or chronic pain syndrome and, indeed, instead, advised in it's literature that the procedure was "safe". (T. p. 81-82; Plaintiff's Exhibits 1 and 2)
Dr. Sena Kihtir, plaintiff Haugen's treating physician and expert witness at trial, testified that Ms. Haugen's injuries and RSD condition were caused by the negligence of defendant's employees. She testified that Ms. Haugen's swelling, bruising and black and blue condition right after the plasma donation were the result of blood being infused into the soft tissue between the muscle, the tendons and the nerves. When asked what caused the blood to be dispersed into the tissue outside the vein Dr. Kihtir answered "Well, the only thing that could have caused it is - - is if the cannula was displaced, it was dislodged." (Kihitr depo. p 40) The "cannula" is "the plastic or metal piece that lies inside the vein" and puts the blood back into the donor's circulatory system. It is similar to the device used on someone who is in the hospital and is receiving fluids intravenously where the plastic or metal "needle" is placed inside the vein. (Kihtir depo. pp. 40-41; 43) Dr. Kihtir testified that Ms. Haugen's bruising, swelling and black and blue condition, was caused by a significant amount of blood infused into Ms. Haugen's soft tissue underneath the skin but outside the vein. Dr. Kihtir testified that defendant should have constantly monitored the plasma donation procedure to make certain that the Ms. Haugen's blood was going back into her vein as opposed to the tissue. "Absolutely. There would be no point injecting it into the tissue." (Kihtir depo. pp.44-45)
Dr. Kihtir further testified as follows:
Q. (By attorney Bolinske) Dr., is it fair to say that proper medical practice in - in conducting this plasma donation should not have resulted in the blood being dispersed outside of the vein?
A. That's my belief, yes.
Q. Do you have any doubt about that at all?
A. No. (Kihtir depo. pp. 45-46)
* * * * * *
Q. (By attorney Bolinske) Now, Dr. did the --- in your opinion the plasma donation on January 17, 2001 cause Rhonda Haugen's RSD?
Q. And what is your basis for concluding that?
A. I believe that the symptoms she's described, the - the occurrence with what happened with the cannula being dislodged, a large amount of blood being infused into the soft tissues, the type of pain she's had, the symptoms of coolness, color changes that's occurred, her improvement with the sympathetic blocks all, I believe, are consistent with the RSD injury.
* * * * * *
Q. And so it's - is it fair to say that she should have been continuously monitored during this process to see that the blood was going into the vein as opposed as into the tissue?
A. Absolutely. (Kihtir depo. pp. 60-61)
Dr. Kihtir also testified that depression is often caused by a chronic pain condition:
Q. (By attorney Bolinske) And why is that?
A. Why? Because chronic pain is all consuming, affects - can affect every aspect of life, of normal daily function, of social interactions, work, household chores, leisure, sexual activity. And she actually had - the questionnaire that she filled out even when I first met her, it was already affecting all these aspects. And chronic pain has a very high association with depression.
Finally, Dr. Kihtir testified that defendant's treatment of plaintiff Haugen violated the standard of care applicable to plasma donation. (Kihtir depo. p. 65)
Q. (By attorney Bolinske) Dr., is it fair to say that the blood instead of going into the vein and going into the tissue is something that ordinarily shouldn't happen?
A. I - I believe that that's the case. I think that it normally should have gone - the whole purpose of giving blood back is for the patient to be able to use those red blood cells since that's not what's being removed. (Kihtir depo. p. 64)
"--- giving back part of the blood that is removed is the whole purpose of - of - of the blood going back into the cannula into the circulation you know, so if the cannula was dislodged, it does violate standard of care. (Kihtir depo p. 65)
Dr. Kihtir gave all of her opinions to a reasonable degree of medical certainty. (Kihtir depo. pp.36-37)
Dr. Kihtir was raised in Istanbul, Turkey, and attended medical school at the University of Istanbul. She graduated in 1990 and then did an internal medicine residency in New York City at Lenox Hill Hospital which was associated with Cornell. After her internal medicine residency she began an anesthesia residency at New York University. Because her husband was studying plastic surgery in Cleveland, she transferred to Case Western Reserve University for the last 2 years of her anesthesia residency. She returned for a pain management fellowship at Mount Sinai, NYU in 1999. She is board certified in internal medicine, anesthesiology and pain management. In total, Dr. Kihtir spent 6 years in medical school, 3 years in her residency at Cornell and 3 years in her anesthesia residency at NYU and Case Western. She spent 1 year in her pain management fellowship. She then worked in Alabama as a staff anesthesiologist for 3 years between 1996 and 1999. Since July of 2000 she has been at Medcenter One in Bismarck, ND, at it's Pain Management Center. She is one of only 3 board certified pain management specialists in the state of North Dakota. (Kihtir depo pp. 33-36)
Even defendant's expert, Dr. Belgrade, admitted that Ms. Haugen has had persistent pain in her right arm following the January 17, 2001, plasma donation. He, though, called it "neuropathic pain". (Pl's Exh. 20, pp. 9-10) A review of his cross-examination, however, reveals that he admitted that every one of Ms. Haugen's symptoms was consistent with RSD. (Depo. trial testimony, Miles Belgrade, M.D. - Neurology)
Dr. Belgrade also concluded with respect to Ms. Haugen that "there is no evidence of malingering." (Pl's Exh. 20, pp. 10)
III. THE DOCTRINE OF RES IPSA LOQUITUR
The doctrine of res ipsa loquitur is discussed generally in American Jurisprudence 2d as follows. To have the benefit of the doctrine of res ipsa loquitur, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in the particular accident. The presumptions arising from the doctrine of res ipsa loquitur are not pure presumptions of law without any evidence either way, but rather are inferences from the facts which are shown in the particular case.
The res ipsa loquitur doctrine cannot be invoked where the cause of the accident is wholly a matter of conjecture or speculation, and a mere lack of knowledge as to the cause of an accident does not call for the application of the doctrine. It is the manner and attending circumstances that determine its application. In no case can negligence be assumed from the mere fact of an accident and an injury, and, unless the proof of the accident and the attendant circumstances connect the defendant as the guilty party, there is no room for its application.
In order for the doctrine of res ipsa loquitur to apply, the following elements or conditions, although expressed in varying phraseology, must be met:
(1) The accident was of such character as to warrant an inference that it would not have happened except for defendant's negligence.
(2) The accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of.
(3) The accident must not have been due to any voluntary action or contribution on the part of the person injured. (57B Am. Jur2d 1847-8)
While negligence is not ordinarily inferred or presumed, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference, of negligence on the part of the defendant.
The doctrine of res ipsa loquitur as accepted and established by decisional law in all but three jurisdictions in the United States, is that, where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care.
The phrase "res ipsa loquitur" is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. It is merely a short way of saying that the circumstances attendant to the accident are of such a nature as to justify a jury, in the light of common sense and past experience, to infer that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
The doctrine of res ipsa loquitur traces its origin to several Nineteenth Century English cases. The doctrine represents a common-sense appraisal of the probative value of circumstantial evidence. From the circumstantial evidence of an unusual accident the jury is permitted to draw the obvious conclusion that it was the defendant's fault, and the defendant is called upon to explain that the accident did not result from want of care on his part.
The doctrine of res ipsa loquitur has received some condemnation. On the other hand, one court has stated that "the more intensified and diversified our industrialism, mechanics and science become, the more technology and automation advance, the more the doctrine of res ipsa loquitur should take on a stellar role in the law of negligence." Another court has stated: "The doctrine of res ipsa loquitur is a rather complicated concept, but under proper circumstances, highly useful in the law of torts. The utility of the doctrine, where it is invoked, depends entirely upon proper application by the jury. (57 B AM Jur2d 1819-1820.)
The Restatement of the Law of Torts summarizes the doctrine by stating that it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event of is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. Restatement, Torts 2d 328D(1)
The North Dakota Supreme Court discussed the origin and application of the res ipsa loquitur doctrine in Foerster v. Fischback-Moore, Inc., 178 N.W. 2d 258 (N.D. 1970) as follows:
It is well settled that, while negligence of the defendants must be proved and will never be presumed merely from proof of the accident and that the plaintiffs were damaged thereby and that the burden is on the plaintiffs to present evidence of the defendants' negligence from which a reasonable man may conclude that, on the whole, it is more likely that the negligence of the defendants did cause the injury than that they did not - yet that does not mean that there necessarily must have been eyewitnesses to the defendants' negligent conduct. Negligence proximately causing the plaintiff's damages, like any other fact, may be proved by circumstantial evidence. Mischel v. Vogel, 96 N.W.2d 233 (N.D.1959).
This court said, in the Farmers Home Mutual Case, supra 55 N.W.2d at 318:
"If the evidence of circumstances will permit a reasonable inference of the alleged cause of injury and exclude other equally reasonable inferences of other causes, the proof is sufficient to take the case to the jury [referring to the application of the res ipsa loquitur doctrine] * * * If on the other hand, plaintiffs' proof is such that it is equally probable the injury was due to a cause for which defendant was not liable a prima facie case is not established." (Emphasis added)
In the instant case, the fire which destroyed the building started from an unknown cause. The evidence submitted by the Foersters does not establish any act of negligence or a cause which started the fire. The Foersters set forth no theory of negligence or proof thereof other than that, with the aid of the application of the res ipsa loquitur doctrine, they urge that their case should be submitted to a jury for determination and a conclusion as to the weight which should be given to the evidence submitted and to such inferences of negligence that might arise there from.
The Latin phrase "res ipsa loquitur" means nothing more than that "the thing speaks for itself" and is the offshoot of a casual statement made by Baron Pollock during an argument with counsel in a case in the year 1863, in which a barrel of flour rolled out of a warehouse window and fell upon a passing pedestrian.
The statement of this doctrine is as follows:
"There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Prosser Torts 3rd Ed. HB (1964), p. 218.
The conditions that must generally concur in order that the doctrine of res ipsa loquitur may properly be invoked are as follows:
1. The accident must be of a kind which ordinarily does not occur in the absence of someone's negligence.
2. It must be caused by an agent or instrumentality within the exclusive control of the defendant.
3. It must not have been due to any voluntary action of contribution on the part of the plaintiff. (Citing cases.) Prosser Torts 3rd Ed. HB (1964), p. 218.
It becomes necessary that each of the above elements must be established before an instruction upon the doctrine of res ipsa loquitur can be submitted to a jury. 178 N.W. 2d at 262-3 (Emphasis added)
In Robert v. Aircraft Inv. Co., Inc., 1998 ND 62, 575 N.W.2d 672, the North Dakota Supreme Court said:
AIC argues the trial court's finding of negligence was clearly erroneous because there was no evidence for application of the res ipsa doctrine. As we explained in Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 159, n.2 (N.D. 1985)(citations omitted), "[a]lthough labeled a doctrine, res ipsa loquitur is not a rule of substantive law but is a principle of evidence." "Negligence must be affirmatively proved, and will not be presumed merely from the occurrence of the accident or damages." Id. at 158. However, negligence may be proved by circumstantial evidence, and the res ipsa doctrine is a form of circumstantial evidence. Id. at 159. In Victory Park Apartments, we explained how the doctrine works:
As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant's conduct was negligent if the following foundational facts are proved: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
Id. In this case, the trial court's conclusions and findings reflect the essential elements of res ipsa:
6. A cracked crankshaft does not ordinarily occur in the absence of negligence.
7. The rear cone is the instrumentality that caused the plaintiff's injury and the rear cone was in the exclusive control of the defendant.
8. It is foreseeable that if the rear cone is missing the crankshaft will crack.
9. Plaintiff's were not contributorily negligent.
Because the evidence supports the trial court's conclusions of law and findings of fact, we conclude the trial court did not err in finding AIC had been negligent.
AIC argues finding 7 was erroneous, and res ipsa was inapplicable, because "AIC did not have exclusive control and custody of the Ag-cat during the four-year time period preceding the damage to the airplane." However, the trial court concluded the instrumentality that caused the injury was the rear cone, and it "was in the exclusive control of the defendant" at the critical time. As explained by Prosser and Keeton on the Law of Torts 39, at 248-49 (5th ed. 1984) (omitting footnotes and paraphrasing for this case):
Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant.... The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that the plaintiff was responsible for all reasonably probable causes to which the accident could be attributed.... [Causation] evidence need not be conclusive, and only enough is required to permit a finding as to the greater probability. The plaintiff is not required to do the impossible by accounting for every moment of the [propeller assembly] since it left the defendant's [shop]; and it is enough if the plaintiff produces sufficient evidence of careful handling in general, and of the absence of unusual incidents, to permit reasonable persons to conclude that, more likely than not, the event was due to the defendant's negligence. 1998 N.D. at 62-63 (Emphasis added.)
In Investors Real Estate Trust Properties v. Terra Pacific Midwest, 2004 ND 167,686 N.W.2d 140, the North Dakota Supreme Court revisited the doctrine of res ipsa loquitur and stated:
IRET contends that liability for negligence can be established in this case by applying the doctrine of res ipsa loquitur. We outlined the doctrine in Victory Park, 367 N.W.2d at 159 (citation and footnote omitted):
As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant's conduct was negligent if the following foundational facts are proved: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff. In order to have the court instruct on res ipsa loquitur, the plaintiff must present probative evidence from which the jury could find each of the required foundational facts. (Emphasis added)
IRET argues that, because Terra Pacific had control over the building and the jobsite, it had control over the "instrumentality" which caused the injury. In Victory Park, however, we specifically rejected the argument that control over the location of the fire equates with control over the instrumentality that caused the fire:
Victory Park asserts that the "instrumentality" which caused the injury in this case was either the couch or the apartment, which were in the exclusive control of Doris as the tenant of the apartment. We disagree.... We question the logic of a rule which would permit an inference of negligence to arise merely from the defendant's control over the object in which the fire originated or the area where it originated. The far better rule, which we have already embraced in Foerster v. Fischbach-Moore, Inc., 178 N.W.2d [258,] 263 [(N.D. 1970)], is that "the 'thing' or 'instrumentality' which caused the fire ... is required to be under the control of the defendant."
Victory Park, 367 N.W.2d at 159-60. Therefore, it is axiomatic that when the plaintiff has failed to present any evidence establishing the point of origin or the specific thing which caused the fire, but relies upon mere speculation as to the cause of the fire, res ipsa loquitur is inapplicable. See Foerster, 178 N.W.2d at 263-64. (2004 ND at 171)
IV. THIS CASE INVOLVES "ORDINARY NEGLIGENCE" RATHER THAN "PROFESSIONAL NEGLIGENCE".
This case involves "ordinary" negligence rather than "professional" negligence (malpractice). This has been made clear by the following North Dakota Supreme Court decisions, and, in fact, was a specific finding made by trial judge Haskell in this case. (T.pp. 3-4)
In Jilek vs. Berger Elec., Inc., 441 N.W. 2d 660 (N.D. 1989) the North Dakota Supreme Court stated that "malpractice" is a professional's failure to exercise the requisite degree of skill and learning in providing services and that "malpractice" means professional negligence. The Court went on to state that for the rules relating to professional negligence to apply the occupation must be one, that as a general rule, requires a college degree in the specific field. Consequently, the Court in Jilek held that an electrician practices a trade, not a profession, and that the rules of ordinary negligence applied. The Court stated further that even the requirement of a license for an occupation does not mean that it is a "profession".
In Kuntz vs. Muehler, 1999 ND 215, 603 N.W. 2d 43 (N.D. 1999) the North Dakota Supreme Court held that a "profession" for purposes of professional malpractice requires a college degree in a specific field, and that even a college degree doesn't automatically qualify the occupation as a "profession". The Court then held that financial planning is not an occupation that requires the specialized knowledge, long and intensive preparation in skills and scholarly principles underlying those skills typically associated only with professions. Consequently, the rules applicable to ordinary negligence applied.
In Sime vs. Tvenge Assoc. Architects, 488 N.W. 2d 606 (N.D. 1992), the Court stated that the distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of science or art, requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience. The Court then held that an architect was a "professional".
In the instant case we are dealing with a phlebotomist. A phlebotomist is a technician who draws blood. A phlebotomist is actually a step below "clinical laboratory scientists" and "clinical laboratory technicians" who are required by N.D.C.C. Chapter 43-48 to be licensed by the North Dakota Board of Clinical Laboratory Practice. A phlebotomist is not even required to be licensed and is, in fact, specifically excluded. See N.D.C.C. 43-48-01 (3) and 43-48-03 (6).
Phlebotomists at defendant BioLife Plasma Services have only minimal training. They are essentially "self taught" through the use of a "self study" workbook and then are trained in what is basically "on the job" training. (T.p.178) The specific phlebotomist involved in this case, one Rebecca Woiwode (now "Lorenz"), was hired by Defendant BioLife Plasma Services on May 29, 2000. She had only 4 to 6 weeks of self study at BioLife. (T.pp.177-178) She completed her self study course in phlebotomy on October 25, 2000, less than three months before Ms. Haugen's injury. (See Pl's. Exh. 23, in the Appendix at p. 25). (Defendant BioLife's facility itself was also "new". It did not open until June, 2000, only some 7 months prior to Ms. Haugen's injury.) (T. 178)
The above circumstances, (as concluded by Judge Haskell), do not qualify a phlebotomist as a "profession" under the requirements set forth by the North Dakota Supreme Court. There is no college degree. There is no specialized knowledge or long and intensive preparation such as is involved in, for example, the professions of law or medicine. There is not even the requirement of a license.
Moreover, the alleged negligence in this case can easily be assessed on the basis of common everyday experience. The blood was drawn from a vein and was supposed to be returned to the vein. That is obviously an easy concept to understand in the context of this case. Instead, the blood was shot under pressure into the tissue surrounding the blood vein because the needle was not properly placed.
Consequently, the rules applicable to "professional" negligence (malpractice) do not apply in this case.
Even if a "phlebotomist" could somehow be determined to be a "professional" causing this to be a case involving professional negligence (malpractice) the law is clear that expert testimony is not necessary where matters to be proved fall within areas of common knowledge and developing lay comprehension of medical techniques and where the results of surgical or medical treatment, viewed in light of all the circumstances, provide a sufficient evidentiary basis to support an inference of negligence. Winkjer vs. Herr 277 NW 2d 579 (N.D. 1979) Judge Haskell also concluded that this principle applied in this case. (T.pp. 3-4)
In any event, plaintiff did in this case have an expert who testified (1) as to defendant's negligence, (2) that that negligence caused the plaintiff's injuries, (3) as to the nature and extent of those injuries, (4) that plaintiff's injuries were permanent and (5) the consequences of those injuries. That expert was Dr. Sena Kihtir. Dr. Kihtir also testified that defendant's conduct violated the standard of care. (Dr. Kihtir depo. pp. 40-1; 43-6; 38-40; 46-48; 50; 59-63; 64-66)
With respect to the doctrine of res ipsa loquitur, while it is true that that doctrine may generally not be invoked in actions for malpractice there is an exception to that rule. In Wasem vs. Laskowski, 274 N.W.2d 219 (ND 1979), the North Dakota Supreme Court held that the exception applied in "cases where the undesirable result is such that it is evident even to a layman and could not have occurred except for the doctor's negligence, as for instance, when a foreign object is left in a wound after an operation". 274 NW 2d at 225.
V. ANALYSIS: APPLICATION OF RES IPSA LOQUITOR TO THE FACTS OF THIS CASE.
The doctrine of res ipsa loquitur was outlined in Victory Park, supra 367 N.W.2d at 159 and reaffirmed in Investors Real Estate Trust Properties, supra,:
As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant's conduct was negligent if the following foundational facts are proved : (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff. In order to have the court instruct on res ipsa loquitur, the plaintiff must present probative evidence from which the jury could find each of the required foundational facts. (2004 N.D. at 171)
In the instant case all foundational facts were established. At a minimum, plaintiff most certainly presented "probative evidence" from which the jury could find each of the required foundational facts, which is all that is necessary for the doctors to apply. Investors Real Estate Trust Properties, supra, 2004 at 171.
Thus Dr. Kihtir testified, and her testimony was not rebutted, that the blood products being returned to Ms. Haugen after the plasma had been extracted should have gone back into Ms. Haugen's vein. This is a conclusion one can truly consider "obvious". According to Dr. Kihtir, and to the common sense of each and every one of us, what sense does it make to infuse the returning blood product into the soft tissue surrounding Ms. Haugen's vein rather than into the vein itself? This evidence establishes the first foundational fact, namely that blood which should have gone back into the vein didn't - something that ordinarily does not occur absent negligence on someone's part. Here, the negligence was improper placement of the needle.
Next, the instrumentality which caused plaintiff Haugen's injury (the "cannula", or as we commonly refer to it, the "needle", was at all times in the exclusive control of defendant BioLife. It was their property. It was inserted into Ms. Haugen by defendant BioLife's employee. Ms. Haugen described the setting as kind of like a beauty shop. The seats were all lined up and the plasma separation machine was located behind her. You are in "kind of a laying down position". (T. 35) On the specific date of her injury, January 17, 2001, Ms. Haugen testified that she was placed in "a chair", like a barber chair or beauty chair, and that you "lie back" in it. A young technician came and "put the needle in". Ms. Haugen had absolutely nothing to do with ownership of the needle, insertion of the needle, placement of the needle, or anything else other than being the "recipient" of the needle. Nor did she operate the machine attached to the needle. (T. 37) After a period of time, another technician looked at the machine, "came over and did something to the machine and then she repositioned the needle in my arm." She worked on it for a little while. I mean she - it wasn't just an adjustment. She adjusted it. She pulled it out a bit, repositioned it. I mean it was quite uncomfortable the way she worked on it and then she stood by and held the needle in my arm while the blood was being put back in my arm, and that took quite a while." (T. 38). Again, Rhonda had absolutely nothing to do with the needle, the repositioning of the needle or the fact that the technician held the needle in place. The instrumentality which caused Ms. Haugen's injury was, again, quite obviously in the exclusive control of defendant BioLife and it's employees.
The third foundational fact, that "there was no voluntary action or contribution on the part of the plaintiff", is also here obvious. Ms. Haugen did nothing which in any way contributed to her injury. She sat in a reclining position in defendant BioLife's chair. Her only involvement was as the plasma donor. She had nothing whatsoever to do with (1) the needle, (2) insertion of the needle, (3) adjustment of the needle or (4) the machine which was collecting and separating her plasma. Her role in the entire procedure was purely passive.
No witness on defendant BioLife's behalf even testified, let alone, rebutted, Dr. Kihtir's testimony (1) that defendant was negligent or (2) that defendant's negligence caused plaintiff Haugen's injuries (whether called RSD or "neuropathic pain").
In fact defendant's very own expert himself, Dr. Belgrade, concluded in his February 4, 2005, report that: "Ms. Haugen has persistent right upper extremity pain following bruising as a result of plasma donation on January 17, 2001." (Plaintiff's Exhibit 20 p.9) (Emphasis added)
And, further, no witness on defendant BioLife's behalf even testified regarding, let alone rebutted, the evidence to the effect that (1) the instrumentality that caused Ms. Haugen's injury was in the exclusive control of defendant BioLife and (2) that there was no voluntary action or contribution on Ms. Haugen's part which caused her injury.
It must be said then, and it appears to be uncontroverted, that plaintiff presented probative evidence from which the jury could find each of the required foundational facts. Consequently, the court should have instructed the jury on the doctrine on res ipsa loquitur. Again quoting Victory Park, supra, and reaffirmed in Investors Real Estate Trust Properties, supra, "In order to have the court instruct on res ipsa loquitur the plaintiff must present probative evidence from which the jury could find each of the required foundational facts." (Emphasis added) Ms. Haugen's injury was one which does not normally occur in the absence of negligence, defendant BioLife had exclusive control over the instrumentality and there was no voluntary action or contribution on the part of Ms. Haugen.
Plaintiff Haugen in fact specifically requested a jury instruction on res ipsa loquitur, using language taken directly from the Victory Park and Investors Real Estate Trust cases. That requested instruction may be found in the Appendix at page 11 and provided as follows:
RES IPSA LOQUITOR
Under North Dakota Law the jury may draw an inference that the defendant's conduct was negligent if the following facts are proved:
1) the accident was one which does not ordinarily occur in the absence of negligence;
2) the instrumentality which caused the plaintiff's injury was in the
exclusive control of the defendant; and
3) there was no voluntary action or contribution on the part of the plaintiff.
Robert v. Aircraft Inv. Co. Inc.
575 N.W.2d 672 (N.D. 1998), 1998 ND 62
In discussion in chambers prior to closing argument Judge Haskell rejected the requested instruction and refused to so instruct the jury. In doing so, Judge Haskell said:
THE COURT: Well in listening to the evidence, I believe that it would not be appropriate to give the res ipsa loquitur instruction and here's why. Res ipsa is an evidence principle that's used to allow a jury to draw inferences from events that are otherwise, for lack of a better term, unexplained except by negligence. The classic law school example is that a plane doesn't just crash without either somebody having committed a pilot error or something mechanical having gone wrong that can be connected back either to the mechanic or to the manufacturer. Planes just don't crash. In this case, there is specific evidence as to what happened, direct evidence as to what happened, how it happened, what the result was. So I think if we were then to give the instruction on allowing inferences of negligence, it would be inappropriate because again, it's an evidence theory that allows inferences when there is no other evidence of negligence. And again, each side obviously has a different view of whether there was negligence or not but in this case, I just think that the evidence - without even looking at the three prongs, I think that if you look at the three prongs, there's argument either way as to at least the first one but the bottom line to me is that this is an evidence theory and it's not appropriate in this case, so I'm not going to give that instruction. Obviously by requesting it and discussing and asking for it, you've preserved your record [on] that." (T. p. 244)
It is respectfully submitted that each of the three foundational facts required before an instruction on res ipsa loquitur may be given to the jury are here present. They are, we submit, absolutely established and, indeed, are without even rebuttal evidence on defendant BioLife's part. The decision to accept or reject the inference of negligence pursuant to application of the res ipsa loquitur doctrine must be left to the jury. 57 B Am.Jur. 2d. 1867 and cases cited therein.
Plaintiff Haugen obviously does not have the benefit of an X-ray or MRI "picture" which would show improper placement of the needle at all times during her plasma donation. She can only, then, establish that the needle was in fact (1) initially or (2) sometime thereafter misplaced during the "adjustment" process and was in fact (3) infusing blood outside of the vein into surrounding soft tissue rather than back into the vein by circumstantial evidence. This is precisely the type of situation the doctrine of res ipsa loquitur was created to cover.
It is respectfully submitted that this case presents the perfect factual background for the application of the res ipsa loquitur doctrine, and the guidance, i.e., "instruction", it would have given to the jury. Had it been properly instructed, the jury would have known that the law allowed it to find negligence in a case like this through the application of the doctrine of res ipsa loquitur. It can hardly be argued that the three foundational facts necessary for the court to instruct the jury on res ipsa loquitur are not here present. The law is clearly to the effect that when those foundational facts are present the res ipsa loquitur instructions should be given and it is then up to the jury to determine whether or not that doctrine applies. Here, plaintiff Haugen was denied the opportunity to present and argue her case pursuant to the well established doctrine of res ipsa loquitur. That, we submit, was clear error. Judge Haskell's analysis did not even begin to address the existence or non existence of the requisite foundational facts. Further, Judge Haskell completely ignores the role of the jury and the right of plaintiff to have her case submitted to the jury on the factual issues raised by the doctrine of res ipsa loquitur. Ms. Haugen was essentially denied her right to a jury trial on those issues.
She was not permitted to argue the application of res ipsa loquitur to the jury in closing argument. And the jury did not have the opportunity to discuss, consider and decide these issues in it's deliberation.
It is respectfully submitted that Judge Haskell's refusal to instruct the jury on the doctrine of res ipsa loquitur (there being here clear probative evidence of the existence of the three foundational facts, and little if any evidence to the contrary), was erroneous. It is respectfully submitted that, consequently (1) the Judgment in this case should be reversed and (2) plaintiff Haugen granted a new trial at which time she will have the full benefit of res ipsa loquitur. She is entitled to a true "jury trial", as is her right, on all factual issues. She was denied that right by Judge Haskell's refusal to instruct on the doctrine of res ipsa loquitur.
Dated this 20th day of January, 2006
|ROBERT V. BOLINSKE|
|(I.D. No. 03266)|
|ATTORNEY AT LAW|
|Attorney for Plaintiffs|
|515 North Fourth Street|
|Bismarck ND 58501|