1 Original Research Article The Current Trend of Allocating the Burden of Proof through Medical Malpractice Civil Action in the United States Fa-Chang Cheng 1, * In medical malpractice cases, factual issues are decided by a fact finder (either a jury or trial judge) through evidence provided by both parties in the process of deciding the burden of proof. After the plaintiff satisfies the prima facie case requirements, allocation of the burden of proof in a trial follows according to the rule of law. In ordinary situations, a plaintiff has the ultimate burden of persuasion in a trial, but with trials of medical malpractice, sometimes the rules for allocating the burden of proof differ under some circumstances. The issue of allocating the burden of proof in trials of medical malpractice cases is the focus of this article. Based upon the introductory material and for the purpose of this article, in the beginning, this paper provides a brief explanation of the general principle of allocation of the burden of proof in a trial of civil litigation in the US. Then, the idea and substantial content of the res ipsa loquitur principle related to trials of medical malpractice for allocation of the burden of proof in the US are introduced. In the last part of this article, a fairly recent case relatedto the res ipsa loquitur principle is discussed, and personal observations of future trends in dealing with the issue of allocating the burden of proof in medical malpractice litigation are made. ( FJJM 2010; 8 (4) : ) Key words: medical malpractice, burden of proof, allocating the burden of proof in the US, the res ipsa loquitur principle, prima facie case requirement, civil litigation INTRODUCTION In the US, trials for civil actions can be categorized into 2 parts: factual issues and legal issues. There can be no doubt that the trial court has the sole authority to interpret the law. Generally speaking, parties of a pending case have the burden of trying either to establish or destroy the factual issues in such cases. These factual issues are decided in a case by a fact finder (either a jury or trial Graduate Institute of Science and Technology Law, National Kaohsiung First University of Science and Technology, Kaohsiung City, Taiwan 1 Submitted August, 04, 2010; final version accepted November, 25, *Correspondence author: 輔 仁 醫 學 期 刊 第 8 卷 第 4 期
2 Fa-Chang Cheng judge) through evidence provided by both parties in the process of allocating the burden of proof. But, in the process of allocating the burden of proof in a trial, a court first decides whether there is a genuine issue of material facts in such cases, which means the plaintiff at least has a slight chance to win, in order to satisfy the requirement of a prima facie case established by the plaintiff . Under the requirement of prima facie case establishment, if the court thinks that the plaintiff has no way to win the case or there is some procedural defect in filing the litigation, it dismisses the case. After the plaintiff satisfies the prima facie case requirement, allocating the burden of proof in a trial follows according to the rule of law. In ordinary situations, the plaintiff has the ultimate burden of persuasion in a trial, but with trials of medical malpractice, sometimes, the rules for allocating the burden of proof differ under some circumstances. The issue of allocating the burden of proof in trials of medical malpractice cases is the focus of this article. Based upon the material introduced above and for the purpose of this article, this paper begins with a brief explanation of the general principles of allocating the burden of proof in a trial of civil litigation in the US. Thereafter, the idea and substantial content of the res ipsa loquitur principle related to trials of medical malpractice for allocating the burden of proof in the US are introduced. In the last part of this article, a fairly recent case related to the res ipsa loquitur principle is discussed and personal observations of future trends in dealing with the issue of allocating the burden of proof in medical malpractice litigation are made. General principle of allocating the burden of proof in trials of civil litigation in the US Generally speaking, in civil litigation, if the factual dispute is turned over to the fact finder to make a decision, the burden of proof is for the plaintiff to reach a level of persuasion by the preponderance of evidence. This means that before a plaintiff can convince the court (or jury) to hand down a judgment in favor of him/her, the plaintiff must prove there is at least a 51% chance of truthful statement in his/her assertion that the defendant is liable for committing the tortuous activity .As mentioned above, eventually the burden of persuasion is imputed onto the plaintiff . The burden of evidence, which means the process of bringing counter evidence to reduce the credibility of the opposing argument, and the back and forth between parties during the trial or even in the prima facie case stage , are burdens on both parties, but not allocating the burden of proof (persuasion) in a trial, which is the focus of this article. So, for the issue of allocating the burden of proof in civil litigation, generally speaking, it should indicate that a plaintiff has the burden of proof (persuasion) in a case by the preponderance of the evidence. Shifting the burden of proof (persuasion) to a defendant means that the defendant has the burden of proof (persuasion) in a case by the preponderance oftheevidencetothatshowhe/sheisnotnegligent. Allocating the burden of proof (persuasion) for medical malpractice cases in the US The emerging legal effects of the doctrine of res ipsa loquitur Although, in ordinary cases, the plaintiff has the burden of proof (persuasion) in civil litigation, the plaintiff has the burden of proof (persuasion) in medical malpractice cases. At the same time, in much medical malpractice civil litigation, plaintiffs often lose their cases because there is no direct or sufficient circumstantial evidence to prove that the defendants' conduct breached the duty of care, which was the cause of the damage. Under such circumstances, courts developed the principle of 192 Fu-Jen Journal of Medicine Vol.8 No
3 Allocating the Burden of Proof in Medical Malpractice res ipsa loquitur (the thing speaks for itself) to enhance the creditability of facts in the case, which shifts the burden of proof or even results in legal consequences of negligence per se. Within the principle of res ipsa loquitur, the court allows the plaintiff to offer the defendant's action in accordance with the legal criteria as reference evidence of the defendant's negligence,thesolereasonforshifting the burden of proof to the defendant, or even applies the legal effects of negligence per se to the defendant's conduct . Under such a principle, the plaintiff uses the doctrine of res ipsa loquitur to reduce or shift the burden of proof, and even to achieve the legal effects of negligence per se. For example, in Hestback'scase ,theplaintiff underwent surgery to remove the gallbladder, and in the process of surgery, the doctor found there was a sponge missing before he closed the abdominal cavity. After conducting a thorough search and even taking an x-ray, the doctor was convinced that no sponge had been left behind in the patient's abdomen and concluded it was not a wise thing to keep the patient under anesthesia. So, the wound of the plaintiff was sewn up, and the plaintiff was sent to the recovery room where the a second x- ray was taken there. This time, the x-ray indicated the sponge's whereabouts, and a second operation to remove the sponge from the plaintiff'sbody was responsible for an infection of the surgical wound which were the background facts for the case. The defendants (including the doctor and the county) asserted that under the facts in the case, expert testimony was needed in the trial, and there was no way to use the doctrine of resipsaloquitur,because the doctor's behavior had to be judged based upon the expert testimony. The court in this case disagreed with the defendants' assertion, which it sought; in some medical malpractice cases, the facts in are so obvious that layman could not misjudge them. The court affirmed the jury instructions from which they could infer the defendants' negligence based upon the doctrine of res ipsa loquitur. The timing for applying the doctrine of res ipsa loquitur From the previous section, it can be seen that the court was willing to remedy the plaintiff's difficulty in proving the defendant's breach of duty of care. In applying the doctrine of res ipsa loquitur, there should be three different requirements in accord  : generally speaking, the plaintiff would not have suffered damage if the defendant had not been negligent; the instrument which caused the harm to plaintiff was under the exclusive control of the defendant; and the alleged negligence of the defendant was the factual causation of harm to the plaintiff. To provide more details about these elements, the following briefly explains the substantial content of these three different elements. (1) To satisfy the first requirement, the plaintiff does not need to rule out every possibility other thanthe defendant's misbehavior which might have contributed to harming the plaintiff. The plaintiff inthecaseonlyneedstoprovethattherewas greater than a 50% chance of the defendant'sbreach of duty which directly caused the type of harm suffered by him/her. For example, in Holmes' case , after having received knee surgery, the plaintiff suffered feelings of stinging and numbness in his hands without a clear explanation. The evidence showed that the first time the doctor was clearly informed by the plaintiff about this situation was nearly 2 weeks after the surgery, according to the memory of the doctor, and the doctor was not sure whether he had been informed the day following the surgery. The plaintiff tried to persuade the court to use the doctrine of res ipsa loquitur. The court decided in the case that even though the inference of all the evidence was interpreted in a 輔 仁 醫 學 期 刊 第 8 卷 第 4 期
4 Fa-Chang Cheng way favorable to plaintiff, there still was no reason to apply the doctrine of res ipsa loquitur, because the plaintiff could not satisfy the first requirement of convincing the court by the facts themselves that there would be more than a 51% chance of the defendant having breached the duty which directly caused the harm suffered by the plaintiff . (2) For the second requirement of res ipsa loquitur, the plaintiff must prove that the instrument which caused the harm to the plaintiff was under the exclusive control of the defendant. In this regard, there can be two different definitions for the scope of so-called "exclusive control".the rigid definition means that the defendant must have been in physical control of the instrument which caused the harm to the plaintiff. The lesser definition only means that the defendant had the authority (or obligation) to supervise the use of the instrument which caused the harm to the plaintiff, which would be sufficient to qualify as "exclusive control" .TheRestatement (Second) of Torts adopts the latter (lessened) definition of exclusive control. In the Restatement (Second) of Torts,themeaningofexclusive control is that "other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence" .So,it can be seen that the Restatement (Second) of Torts takes a more-liberal attitude toward the meaning of exclusive control. (3) For the last requirement of res ipsa loquitur, the alleged negligence of the defendant should be the factual causation of harm to the plaintiff. Under this requirement, the facts in the case must show there is a factual connection between the alleged breach of duty of care with the defendant and the harm suffered by the plaintiff. One side issue worth noting with this requirement is whether the plaintiff's own negligence which contributed to his/her own harm will impede the application of res ipsa loquitur in a case. There is no clear answer which means that courts are divided on this issue. The court opposing the application of res ipsa loquitur under such circumstances thought the equity principle of "unclean hands" should come into play in order to remedy possible injustice effects of giving the plaintiff the benefit of the doubt through the principle of resipsaloquitur . And the proposing court thought a plaintiff's own fault should not impede application of res ipsa loquitur to a case . From the explanation of elements in the principle of res ipsa loquitur, it can be deduced from the statement mentioned before that, in medical malpractice cases, the principle of res ipsa loquitur can be applied in cases to alleviate a plaintiff's burden of persuasion in proving the defendant's breach of duty of care in such negligence cases. But the plaintiff in a medical malpractice case still has the obligation to prove the causation (factual or legal) between the defendant's breachofduty and the plaintiff's harm; and also the damages suffered by the plaintiff. Possible types of cases and legal effects of res ipsa loquitur for the burden of persuasion in medical malpractice cases As mentioned before, by adopting the principle of res ipsa loquitur, the court tries to alleviate an unjust situation caused by the difficulty of proof in a case, which would occur if the ordinary rule for allocating the burden of proof is applied to such cases. The unjust situation caused by the difficulty of proof might be because of the camaraderie between doctors, who might not testify against another doctor just for the patient's sake, for example . Therefore, in a case where expert testimony is not required because of the simplicity of the facts, application of such a principle will exactly serve this purpose . In current medical malpractice cases, the absolute majority of courts do recognize the existence of res ipsa loquitur. From 194 Fu-Jen Journal of Medicine Vol.8 No
5 Allocating the Burden of Proof in Medical Malpractice the explanation given before with regard to the principle, not every case has the chance to apply this principle. Roughly speaking, the most suitable cases are of the following two types  :(1)leaving a surgical instrument behind in the patient's body  and (2) after medical treatment, the patient suffers bodily harm unrelated to the surgery . In addition to the types of cases with the potential to fit the criteria of res ipsa loquitur, the possible legal effects of res ipsa loquitur for the burden of persuasion is another issue that needs to be discussed in allocating the burden of proof in medical malpractice cases. It indicates how strong the legal effects of res ipsa loquitur may be, and these are going to be reflected in whether the burden of proof is alleviated or is being shifted from the plaintiff to the defendant. In an early case that was overruled by subsequent court decisions, some courts regarded the legal effects of using the principle of res ipsa loquitur as negligence per se in a case with fairly clear facts . The effects of negligence per se for res ipsa loquitur have recessed into the relics. In recent years, the legal effects of res ipsa loquitur could be either only a reference to infer negligence or the presumption of negligence .Ifthelegal effects of res ipsa loquitur are inference, the fact finder willonlyuseitasonepieceofevidencetovindicate the defendant's negligence (breach of duty), and the fact finder may turn out to find that the defendant is not negligent . Under this theory, the burden of proof has not shifted, and a plaintiff still hasthe burden of persuasion by the preponderance oftheevidenceinordertosustainacase.onthe other hand, the minority court may use the doctrine of res ipsa loquitur as a rebuttable presumption of a defendant's negligence (breach of duty), and the defendant can bring counter evidence to overturn this presumption .Insuchacase,theburdenof persuasion shifts from the plaintiff to the defendant. Recent trend in a case indicating application of resipsaloquitur A fairly recent case handed down by the Supreme Court in Ohio is worthy of examination as the main argument focused on the issue of applying res ipsa loquitur . The plaintiff was a patient receiving kidney dialysis. She had preexisting medical conditions of high blood pressure and chronic kidney dialysis. Once in the process of inserting a new dialysis catheter, the procedure caused a laceration from which blood leaked into the sac surrounding the heart, and she suffered a heart attack. The plaintiff's administrator of the estate filed a medical malpractice case against the doctor. Both parties in the case brought their own expert testimony to support their own respective theories. After oral arguments, the plaintiff asked that the jury be instructed to apply res ipsa loquitur. This was turned down by the trial court, and the issue was appealed to the Supreme Court of Ohio, which is the case discussed in this article. In this case before the Supreme Court of Ohio, the majority of the court first clarified that the legal effect of res ipsa loquitur was the inference of negligence, which means the circumstantial evidence of facts was only one line of evidence to infer negligence from the facts of the case. In ordinary medical malpractice cases, whether the defendants violate the duty of care and cause harm to the plaintiff cannot be understood without expert testimony. Therefore the doctrine of res ipsa loquitur might not be asserted in those cases. But the court also recognized that in some apparent medical malpractice cases, there might be room to apply this principle. After considering the facts of this case, the majority denied the possibility of applying the doctrine because the expert testimony from the defendant doctor showed that the harm might have been caused by the poor condition of the plaintiff's vessel not by the negligent activities of the defendant. So 輔 仁 醫 學 期 刊 第 8 卷 第 4 期
6 Fa-Chang Cheng as long as there is admitted expert testimony for the defendant in a case, as with the current situation in this case, the doctrine of res ipsa loquitur should not apply. As to the dissenting opinion in the case, Judge Moyer thought the majority's opinion subverted long-line precedents with regard to res ipsa loquitur in medical malpractice cases. According to precedents in Ohio, it is supposed that the plaintiff would not have suffered the damage if the defendant had not been negligent in the normal course of business. The facts of such a case would be able to become circumstantial evidence unless the defendant's evidence could obviously show that the harm suffered by the plaintiff was more likely caused by another reason other than the defendant's negligence. According to Judge Moyer's opinion,the majority limited the interpretation of res ipsa loquitur in Ohio's precedents to some undisputable facts from the defendant's point of view. In addition, another dissenting judge, Judge Pfeifer, although agreeing withjudgemoyerbaseduponthelegalprinciple of stare decisis, seemed to go further than the majority in saying that the doctrine of res ipsa loquitur couldnotbeappliedsolongaseitherpartyina case brought up expert testimony. This is because Judge Pfeifer believed the principle should be used in cases with no expert testimony by either party. In sum, from the case described here, the observation is that the application of res ipsa loquitur in a medical malpractice case is difficult other than those with apparent factual situations mentioned above. It can be seen from this case that allocation of the burden of proof in medical malpractice cases will return to the traditional tract in most cases, in which the plaintiff has the burden of proof. CONCLUSIONS The purpose of operating the evidentiary principle of res ipsa loquitur in medical malpractice cases within the US is to remedy the predicament of a plaintiff having to prove the case .Eventhe broader meaning of res ipsa loquitur only requires the possibility that a defendant's negligence exceeds the possibility of other possible alternatives from which the plaintiff's harm resulted in a medical malpractice case, before a court will intervene in allocating the burden of proof. The recent case seems to indicate that courts are moving toward acautiousapproachonthisissueoffavoringthe plaintiff in allocating the burden of proof. The court is unwilling to judge the evidentiary value of the facts in a case, especially when a defendant brings expert testimony in such a case. This tendency reveals the characteristic of the court of being unwilling to make a factual judgment. One last thing in this article is a prediction that the future prevalence of electronic medical records will achieve the main purpose of improving the quality of medical treatment and also indirectly bridge the information gap between doctors and patients due to the transparency of medical treatment. An indirect benefit of this will also contribute to the rare application of the doctrine of res ipsa loquitur. ACKNOWLEDGMENTS I would like to extend my thanks to one of my students, Lei-Ya Wang, for helping me research recent cases. REFERENCES 1. White v. Abrams, 495 F.2d. 724, 729 (9th Cir. 1974). 2. Braudv.Kinchen,310So.2d657,659(La.App.1975). 3. In re Winship, 397 U.S. 358, 364 (1970). 4. Stuart v. D.N. Kelley & Son Inc., 311 Mass. 76, 79 (1954). 5. Hillen v. Hooker Const. Co., 484 S.W.2d 113, 115 (Tex.Civ.App.1972). 196 Fu-Jen Journal of Medicine Vol.8 No
7 Allocating the Burden of Proof in Medical Malpractice 6. Hestbeck v. Hennepin County, 212 N.W.2d 361 (Minn. 1973). 7. Larson v. St. Francis Hotel, 188 P.2d 513 (Cal. App. 1948). 8. Holmes v. Gomble, 624 P.2d 905 (Colo. App. 1980). 9. Id. at Rosev.MelodyLaneofWilshire,247P.2d335 (Cal. 1953). 11. Schwartz VE, Kelly K Partlett DF. Prosser, Wade and Schwartz's torts cases and materials, 11th ed. New York: Foundation Press; 2005: Waterbury v. Byron Jackson, Inc., 576 F.2d 1095, 1100 (5th Cir. 1978). 13. Gatlinv.Ruder,560N.E.2d586(Ill.1990). 14.HaagK.Resipsaloquitur:astepalongtheroad to liability without fault. Do physician have a fighting chance in the face of the mordern application of the doctrine in medical malpractice cases? a closer look at the new fiction. Brandeis Law J 2003;42: Walzer JH. Civil practice forms, New Jersey Practice Series, 6th ed. Eagan, MN: Thomson West, 2010:22: Wampler AT. Fly in the buttermilk: Tennessee's desire to dispense with layperson common sense and the medical malpractice locality rule. Tenn Law Rev 2002;69: Johnson v. Ely, 205 S.W.2d 759(Tenn. Ct. App. 1947). 18. Wickv.Henderson,485N.W.2d645(Iowa1992). 19. Laws v. Harter, 534 S.W.2d 449 (Ky. Ct. App. 1975). 20. Sullivan v. Crabtree, 258 S.W.2d 782, 785 (Tenn. App. 1953). 21. George Foltis, Inc. v. New York, 38 N.E.2d 455 (N.Y. 1941). 22. Estate of Hall v. Akron General Medical Center, 2010 WL (Ohio). 23. Webb GG. The law of falling objects: Byren v. Boadle and the birth of res ipsa loquitur. Stanford Law Rev 2006;59: 輔 仁 醫 學 期 刊 第 8 卷 第 4 期
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