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Anglin v. Kleeman - 140 N.H. 257, 665 A.2d 747 (1995)

Rule:

Ordinarily, negligence will not be presumed or inferred from the fact of injury. The plaintiff retains the ultimate burden of persuasion in negligence actions. Negligence is a fact for the plaintiff to prove by a preponderance of the evidence; a fact for the jury to find or not, without any presumption of law one way or the other

Facts:

The plaintiff, Joseph Anglin, brought a medical malpractice action. A jury verdict in Superior Court was entered in favor of defendant Thomas J. Kleeman, M.D., and his employer, New Hampshire Orthopaedic Surgery, P.A., but against defendant Elliot Hospital (Elliot), in the amount of $50,000. The plaintiff appeals all of the verdicts. We affirm.

On July 31, 1987, the plaintiff underwent reconstructive knee surgery for damage resulting from a basketball injury. The surgery was performed by Dr. Kleeman and another surgeon at Elliot Hospital. Approximately six months later, the plaintiff again underwent surgery to remove a four by 18-inch lap sponge that had been left in his knee during the original surgery.

The plaintiff brought claims of medical negligence and breach of contract or warranty against Dr. Kleeman and his employer, N.H. Orthopaedic. The plaintiff alleged that N.H. Orthopaedic was vicariously liable for the actions of its employee, Dr. Kleeman. As the plaintiff made no independent claims against N.H. Orthopaedic, we need only address his claims against Dr. Kleeman.

The plaintiff also brought a claim of medical negligence against Elliot. All of the claims were tried before a jury. At the close of the evidence, the trial court ruled that the damages available on the plaintiff's breach of contract or warranty actions would be the same as those for the malpractice claims. The plaintiff, therefore, withdrew his breach of contract or warranty actions and excepted to the trial court's ruling regarding the damages available for those claims. The jury returned a verdict for Dr. Kleeman, and against Elliot in the amount of $50,000. The plaintiff filed a variety of post-trial motions, all of which were denied by the trial court.

Issue:

Was leaving a foreign body in a patient following knee surgery is inherently negligent?

Answer:

No.

Conclusion:

The plaintiff next argues that the trial court erred by failing to instruct the jury regarding negligence per se, presumption of negligence, and res ipsa loquitur, as to defendant Dr. Kleeman. The plaintiff's argument rests on the premise that leaving a foreign body in a patient following surgery is inherently negligent, and that the trial court should have found Dr. Kleeman negligent as a matter of law

Plaintiff also contended a res ipsa loquitur instruction should have been given, but the court disagreed because a nurse had given the doctor an incorrect sponge count, upon which the doctor was entitled to rely.

The court refused to consider the propriety of a res ipsa loquitur instruction because plaintiff did not request such an instruction in the trial court. Furthermore, the court found no error in the trial court's rulings.  The court held that negligence will not be presumed or inferred from the fact of injury.  Moreover, a plaintiff retains the ultimate burden of persuasion in negligence actions.  Because negligence is a fact for the plaintiff to prove by a preponderance of the evidence, and it is a fact for the jury to find or not, there can be no presumption of law one way or the other.

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