How have courts interpreted the doctrine of res ipsa loquitur in medical malpractice cases where an operation has failed to produce the expected result?

The fact an operation did not produce the expected result would not necessarily suggest to the ordinary person the operation had been performed negligently. In Pink v. Slater (1955) 131 Cal.App.2d 816, 281 P.2d 272 the plaintiff employed the defendant doctor to remove scars from her face and nose. After the operation her appearance was worse than before and her face became infected. At trial plaintiff presented no medical testimony that there was negligence. Instead she relied on the doctrine of res ipsa loquitur. In affirming the judgment for defendant the court observed res ipsa loquitur would not apply in this case because it does not follow as a matter of common knowledge that the injury plaintiff suffered would not have occurred without negligence. (Id. at p. 818, 281 P.2d 272.)

Where, as here, the injury is obvious but there is nothing to connect that injury to defendant's negligence it cannot be said as a matter of law the plaintiff's failure to make an earlier discovery of fault was unreasonable. (Cf. Dujardin v.

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In Fitzpatrick v. Marlowe (Tx.Civ.App.1977) 553 S.W.2d 190 plaintiff went to the defendant for removal of a small lump from her nose. After the first operation her nose swelled and the bump remained. Defendant performed a second operation which left the plaintiff with a dip in her nose instead of a bump. The court held these facts were not sufficient to establish discovery of defendant's negligence given evidence defendant had assured her application of cocoa butter and cortisone shots would correct the condition. The court noted because the doctor-patient relationship is one of trust and confidence the plaintiff was entitled to rely on defendant's statements until she came into possession of such facts or knowledge that would lead a prudent person to suspect otherwise. The fact plaintiff could see the result of the surgery on her face did not supply the requisite knowledge. Plaintiff "had no expertise concerning the treatment of her injury. She relied on [defendant's] statements promising future treatment and improvement." (Id. at p. 194.)

In Burns v. Bell (D.C.App.1979) 409 A.2d 614, as in the case before us, the plaintiff employed the defendant doctor to perform a face-lift. After the surgery plaintiff had "gross scars," numbness and a "pins-and-needles" sensation around the surgical area. Defendant assured her the scars would improve and the numbness would subside. When plaintiff filed suit some [208 Cal.App.3d 886] seven years later the defendant sought dismissal under the statute of limitations. Addressing the issue of discovery, the court stated: