How far does professed ignorance of a critical fact go to prove professional negligence?

Question

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.

Answer 1

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.

Answer 2

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

etc.

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.

Answer 3

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.