On appeal from the Superior Court, Law Division, Camden County.
Pressler, Muir and Kestin, JJ. The opinion of the court was delivered by Kestin, J.A.D.
Clara Smallwood sued for personal injury arising from the alleged professional negligence of defendant physician. John Smallwood sued per quod and for out-of-pocket expenses. It was plaintiffs' contention that Mrs. Smallwood had suffered injury to her sciatic nerve as a result of Dr. Mitchell's negligence during hip replacement surgery.
The case was tried to a jury which found no cause for action. Plaintiffs appealed contending that the trial Judge erred in declining to charge res ipsa loquitur as requested. We affirm.
The seminal case of Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150 (1981), confirmed the use of res ipsa loquitur in medical malpractice cases. Under that doctrine, an inference of negligence is permitted
Where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.
The general rationale justifying the application of res ipsa loquitur was seen to be applicable in medical malpractice cases:
Res ipsa loquitur is grounded in probability and the sound procedural policy of placing the duty of producing evidence on the party who has superior knowledge or opportunity for explanation of the causative circumstances.
Expert testimony is required in a medical malpractice case by way of satisfying the first element of the doctrine that "the occurrence itself ordinarily bespeaks negligence." In an ordinary personal injury case, this element reflects "common knowledge." In Buckelew, the Supreme Court recognized that in a medical malpractice case common knowledge within the medical community was as valid a basis for an inference of negligence with respect to medical procedures as was common knowledge in the wider community concerning day-to-day occurrences. It was clear, however, that this specialized brand of common knowledge could not be a basis for jury consideration without expert testimony.
The decision in Buckelew was not an invitation to a broader use of res ipsa loquitur in medical malpractice cases than occurs in ordinary negligence matters. Res ipsa loquitur is a doctrine fashioned for limited application in special situations. See Good-year Tire & Rubber v. Hughes Supply, Inc., 358 So. 2d 1339, 1341 (Fla.1978). It is not meant to be applied in every situation in which a medical procedure has an untoward result with an unknown cause. ...