Plaintiff is suing a surgeon for complications that arose from the application of anesthesia. Assume that this has already been established as the cause of the injury. The following exchange takes place:

Lawyer: You performed open heart surgery on the plaintiff, didn't you?*
Surgeon: Yes I did.
Lawyer: Did you put the patient under general anesthesia before the operation?
Surgeon: I don't remember.
Lawyer: Do you normally put a patient under general anesthesia before open heart surgery?
Surgeon: Usually, yes.
Lawyer: But not this time?
Surgeon: I don't remember, one way or the other.
Lawyer: When was the previous time you performed open heart surgery without general anesthesia?
Surgeon: I don't remember.
Lawyer: You have records of your operations, yes?
Surgeon: I have records of the surgeries I performed. They don't contain references to anesthesia.
Lawyer: You have one or more nurses assisting you, right?
Surgeon: Yes.
Lawyer: And your nurse might be able to recall whether or not you used anesthesia?
Surgeon: She might.
Lawyer: Which nurse assisted you on this operation.
Surgeon: I don't remember. The hospital has 100 nurses. Anyone of them might have been on duty at that time and place. I guess if you asked all 100, you might get an answer.

Can the above professed ignorance by itself prove professional negligence by itself, that is, res ipsa loquitor? If not, what further proof would be needed?

*It doesn't have to be open heart surgery, only a procedure that normally requires general anesthesia.

  • Doesn't the plaintiff have to show that the surgeon was not only negligent, but negligent in a way that led to the injury? Even if the surgeon's poor memory or recordkeeping is negligent in itself, it surely wasn't poor recordkeeping that led to their complications. So regardless of whether this is an admission of negligence in itself, I don't see how it would help the plaintiff's case. Commented Feb 7, 2020 at 1:07
  • It seems analogous to suing someone for damages resulting from a traffic collision, and trying to introduce evidence that they ran a stop sign two weeks later. The latter may very well have been negligence but it has nothing to do with their liability in the case at hand. Commented Feb 7, 2020 at 1:08
  • @NateEldredge: This is an example, and perhaps a "bad" one, but in this case, the complications stemmed from the anesthesia, rather than the surgery. So the surgeon is saying, "I'm not sure we did anesthesia in this case, and if we didn't the patient's complications isn't our fault. And the plaintiff is retorting, "Play idiot if you want, but if you profess not to know such a vital fact about your own operation (and mine), that might be negligence in and of itself. Because it's your business to know these things.
    – Libra
    Commented Feb 7, 2020 at 4:33

3 Answers 3


What’s the problem? Most likely the situation is 100% sure that he or she wouldn’t have performed the operation without anaesthesia. Therefore anaesthesia was not something his brain needed to remember, therefore it didn’t.

He gave a truthful answer. He has no memory of it. He doesn’t need a memory of it, he just needed to make sure it’s done. Do you have any reason to believe it was not done?

Operating without anaesthesia would be negligent. Not remembering it is done is not. On the other hand, he would have remembered the patient screaming if he started cutting without anaesthesia.

  • Good points. Maybe a better worded question is, "Has the surgeon been pinned on Morton's fork?" That is, by denying that he was negligent in conducting the anesthesia, he instead "confesses" to negligence by not using anesthesia.
    – Libra
    Commented Feb 4, 2020 at 17:02

Note: the example is distracting because it is so unrealistic. The surgeon does not put the patient under anesthesia, the anesthesiologist does. In a malpractice case, the plaintiff would have records which include what type of anesthesia was used, etc.

In any case, your question seems to be about establishing negligence in a medical malpractice case. The question "Was the patient put under general anesthesia?" is being used by the plaintiff to establish that as a fact, and in questioning to set the stage. This is sort of the preliminary step:

Step 1: Patient had surgery performed by Dr. X on date Y.

Step 2: Patient had general anesthesia on date Y as part of the surgery.

Step 3: Patient suffered an injury.

Step 4: The injury was related to the anesthesia.

Step 5: The injury from the anesthesia was related to a deviation from the standard of medical care in this situation.

Step 6: The damages suffered by the patient amount to $Z


Step 1 and 2 are facts that the defense could try to dispute and force the plaintiff to prove. But they don't really need Dr. X to "admit" to step 1 and 2, it is in the records that are provided as evidence. It just sets the stage- OK, we are talking about this surgery on this date.

To answer the question in you last line: That is not what this trial is about, It is about a specific incidence of alleged malpractice.

Keep in mind that if Dr. X decided to take this strategy, he would come off as churlish, and it would not help, because the fact could be established otherwise. Although Dr. X acting this way does not prove anything about his negligence, when the jury is considering his credibility, this performance will not help and will likely hurt him.

  • Good formulation. Let me try to reformulate using your model. In my question, I said that assume steps 3 and 4 had been established already. Maybe I did not properly describe steps 1 and 2, but assume (per the question) that something like the cited exchange actually took place. Assume "away" question 6, the plaintiff is satisfied with $1 damages. Then the reduced question is, does the professional's (not necessarily a doctor's) not knowing key facts about his work and being "churlish" tend to support the necessary "deviation" from the standard of care required in step 5?
    – Libra
    Commented Feb 4, 2020 at 17:24
  • @Libra In USA courts the finder of fact can weigh the facts however they wish. I see what you are asking. They would find his testimony not credible, but they are only considering the question before them (was he negligent and did his negligence lead to the damage, for example). It's not that his not knowing would prove that he did something wrong, but it could leave the plaintiff's assertions and testimony unchallenged, because no one would believe the doctor's testimony.
    – Damila
    Commented Feb 4, 2020 at 17:44
  • Thanks for your help so far. Assume that the above was from a deposition, it's about to go to trial, and the plaintiff is choosing between a bench and a jury trial. How would he decide whether a judge or jury would be more "put off" by the doctor's testimony? Or is it a situation in which a known judge as finder of fact would likely produce a narrower range of outcomes than a random jury?
    – Libra
    Commented Feb 4, 2020 at 17:55
  • Don't know. I'm a doctor not a lawyer. Total guess, but I would think a judge would recognize the total BS quickly.
    – Damila
    Commented Feb 4, 2020 at 18:01

Here's a compendium of what I have learned from others on this post, elsewhere on the site, and in other forums.

Torts are basically defined by the intersection of the law and the facts. Thus, there are very few "res ipsa loquitor" torts based on law, because the facts play an important part.

Even so, the kind of behavior in the question may need very little "extra" by the way of facts to turn it into a tort. For instance, in using what I call the "idiot''s defense," a professional claims to "know nothing" about a critical aspect of the case in order not be be held liable for it. But he runs the risk of placing himself on a "Morton's Fork, whereby his admitted ignorance of his work is itself evidence of professional negligence.

Elements of a tort include 1) "duty of care" (evident from the professional relationship), 2) harm to the defendant (usually established by the suit) 3)unreasonable causation by the defendant's actions* and 4) lack of causation from other sources.

Another poster characterized the defendant as a "churlish" speaker of "bs." Another way to put it is that his posture and statements have greatly weakened his "reasonable person" defense (number 3).

In a tort, there are at least two parties, the plaintiff and defendant, and usually one or more bystanders. Assuming that the plaintiff and other bystanders acted reasonably, the defendant's "unreasonable" attitude will put him way ahead in the "race" of being shown to be the cause of damage, hurting his defense number 4.

*If I fell down, broke my leg, and injured someone while breaking my fall, that might be a "reasonable" cause of damage to the other person. If that's the case, I would not be liable.

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