Notes and Comments:

1.The court characterized in the comment the plaintiff’s pain as complained in this case as “obviously the result of someone’s negligence,[which the plaintiff]would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.” Would this statement make the ruling in this case narrower or broader? Should a plaintiff/patient in such a case first of all make it an obvious case that he has received pain and suffering from the doctor’s operation,or,indeed,should he prove by evidence that his problem is directly connected with the surgery,which seems to stand the case on its head: the doctrine requires that (1)a plaintiff’s injury is the necessary result of an accident,(2) caused by an instrumentality under exclusive control of the defendant,and (3) the accident would not ordinarily happen – but for the negligence – when the defendant fails to execute its duty of care.By the very wording of the doctrine,it appears out of sequence to use it to prove the above (1) and (2) elements.In other words,it fails to grasp the “res” in the doctrine as to what needs to be proved.The “THING” that speaks for itself,in my own personal understanding,refers to the “instrumentality” rather than the “injury” of the plaintiff/patient.If it’s the latter,it’s like,“Since I’m injured,you must be negligent”;whereas in the former,“Since I’m injured by your tool,you must be negligent.”

2.A pain in the arm could be caused by a variety of reasons,many of which would not necessarily be clear to a doctor or an anesthetist who perform surgery of appendectomy (removing appendix in the lower abdomen),let alone a nurse,especially one who cares the patient after the surgery.It would be medically difficult,if not impossible,to imagine that such a pain is directly connected to the surgery,particularly when such a pain is not a usual side effect of such treatment.Likewise,it is difficult to understand how the court in Ybarra took the assumption of negligence without touching upon this issue.

3.“Res ipsa loquitur” is a rule of evidence,or more precisely,a doctrinal maxim of establishing certain facts through the inference of indirect evidence.Plainly,it is circumstantial in nature,and like any circumstantial evidence,it must be weighed against other evidence for proving or disproving a fact.For example,a CCTV footage showing a person thrusting a knife into another would be direct proof of a crime;but a footage showing a person entering a room,then closing the door,then coming out of it,and then,a dead person is later found in that room,is circumstantial evidence.It is effective only when all other possibilities can be eliminated.

4.[From www.wikipedia.com] Most American courts recognize res ipsa loquitur.The Restatement (Second) of Torts,§ 328D describes a two step process for establishing res ipsa loquitur.The first step is whether the accident is the kind that would usually be caused by negligence,and the second is whether or not the defendant had exclusive control over the instrumentality that caused the accident.If found,res ipsa loquitur creates an inference of negligence,although in most cases it does not necessarily result in a directed verdict.The Restatement (Third)of Torts,§ 17,adopts a similar test,although it eschews the “exclusive control”element.(https://www.daowen.com)

The doctrine was not initially welcome in medical malpractice cases.In Gray v.Wright,a seven-inch hemostat was left in Mrs.Gray during gall bladder surgery in June,1947,and despite her chronic complaints about stomach pain over the years,the device was not found until an X-ray in March,1953,when it was removed.Her $12,000 award was reversed by the Supreme Court of West Virginia because she was outside the statutes of limitation when she filed and could not prove that the doctor concealed knowledge of his error.This “guilty knowledge”requirement would disappear over the years,and the “discovery rule” by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence has become the rule in most states,allowing res ipsa loquitur to take its rightful place.

Forty years later,leaving a medical device in a patient was medical malpractice,provable without expert testimony,in almost every jurisdiction.Virginia has limited the rule.“In Virginia the doctrine,if not entirely abolished,has been limited and restricted to a very material extent.” It may be utilized only when the circumstances of the incident,without further proof,are such that,in the ordinary course of events,the incident could not have happened except on the theory of negligence....”

A contention of res ipsa loquitur commonly is made in cases of commercial airplane accidents.It was part of the commentary in a train collision in California in 2008: “If two trains are in the same place at the same time,someone was negligent.”