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94. What is the best response to the defendants' argument?
Both defendants have argued that the allegations in the complaint are inadequate to support a negligence claim.
The complaint further alleged that the woman was under the control, successively, of the ambulance service and the nursing home during the time when she must have sustained the injury, and that either the ambulance service or the nursing home must have negligently moved or handled the woman, causing the injury to her leg.
A physician's report attached to the complaint stated that the woman's leg injury would not have occurred in the absence of negligence.
The woman, who was 86 years old and unable to speak after suffering a stroke, was picked up from her daughter's house by the ambulance service and taken to the nursing home to stay while her daughter was out of town. When the woman's daughter returned a few days later, the ambulance service picked up the woman from the nursing home and returned her to the daughter's house. The daughter was shocked to discover that the woman had a broken leg; her leg had been uninjured when she left for the nursing home.
A complaint filed on behalf of a woman against a nursing home and an ambulance service included the following allegations:
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B is correct. Here, the woman was in the exclusive control of two entities: the ambulance and the nursing home. There is evidence that she was injured by one of them acting negligently. However, because of her state of health, she is unable to provide any evidence about which of the two were negligent. In the healthcare field, some courts have permitted such causes of action to proceed under a res ipsa loquitur theory.
A is incorrect. This is an accurate statement, but it provides no basis for liability since it does not respond to the defendants' argument — that they are not who should be required to prove negligence (or the lack thereof).
C is incorrect. This answer choice correctly notes that entities who separately contribute to a single harm, sometimes called concurrent tortfeasors, can be liable jointly and severally for the resulting damages. However, this answer choice provides no explanation for why the defendants are concurrent tortfeasors, and the facts provide no such indication.
D is incorrect. This answer misstates the facts. There are not sufficient grounds to prove either of the defendants was negligent because the woman cannot allege who actually took the action that harmed her. The physician's report does not state that it must have been both defendants who acted negligently.