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73. What would be the patient's best argument against the motion?
The defendants have jointly moved for summary judgment. The patient has produced affidavits that establish that the applicable professional standard of care was violated.
A patient received anesthesia while giving birth. Upon awakening from the anesthesia, she discovered a severe burn on the inner portion of her right knee. The patient has brought a medical malpractice action in which she has joined all of the physicians and nurses who exercised control over her person, the delivery room, the medical procedures, and the equipment used during the period in which she was unconscious.
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A is correct. Ybarra v. Spangard and cases that follow its approach have relied on this extension of res ipsa loquitur to establish causation in situations in which the plaintiff was treated by a medical team that, as a group, had exclusive control of the patient and in which the patient, because she was unconscious, cannot identify what went wrong.
B is incorrect. This answer choice misstates the facts. There is no evidence in the question that all defendants jointly caused the burn by acting in concert or even that two such defendants jointly caused the burn. Just because a burn happened during an act that all defendants were participating in does not make them liable for negligence.
C is incorrect. This answer choice offers an insufficient description of why the plaintiff's claim could proceed. Even though the plaintiff has produced affidavits establishing the applicable standard of care has been breached by someone, she must also satisfy her burden of proof as to who breached that standard of care and caused her injury. Absent proof who caused her injuries, her claim cannot proceed. As described above, however, she might be able to use res ipsa loquitur principles to defeat the defendants' motion.
D is incorrect. This answer choice offers an insufficient description of why the plaintiff's claim could proceed. Res ipsa loquitur requires a showing that the plaintiff was not the one who caused the injury. However, she must also satisfy her burden of proof as to the other requirements of her negligence claim, including showing who breached the applicable standard of care and caused her injury. Absent that proof, her claim cannot proceed. As described above, however, she might be able to use res ipsa loquitur principles to defeat the defendants' motion.