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Where there is an injury that can only occur through negligence, the jury must be instructed on Res Ipsa Locquitur, even where the Defendant proposes another cause

CASE: Sedlitsky v. Perseso REFERENCE: 400 Pa. Super 1 582 A.2d 1314 (1990) CASE LOCATION: Washington Co., PA.

Our client underwent a thyroidectomy, which is a surgical procedure to remove part of the thyroid gland. In the course of that surgery, the surgeon negligently cut a nerve, the recurrent laryngeal nerve, in our client’s throat (the recurrent laryngeal nerve is a branch of the vagus nerve that supplies motor function and sensation to the voice box).

This was a significant injury because it caused a partial paralysis of our client’s vocal cords which left her with a permanent raspy voice. Also, speaking for any length of time was very exhausting. As can be imagined, because our client was a home visitation nurse, her voice impairment caused much difficulty in the course of her job (she typically would go into homes and have to explain to her patients how to take medications or perform certain therapies). This injury could be partially corrected with a surgical implantation or injection into her damaged vocal cord; however, our client was hesitant to undergo that surgery because of her bad experience with the thyroidectomy.

Although a nerve injury to the patient is a slight risk of a thyroidectomy (about 1% of patients), at trial, it was a medical expert’s opinion that the type of injury that occurred in this case would not occur unless the physician was negligent.

After this case was tried to a defense verdict, it was appealed to the Pennsylvania Superior Court. On appeal, the Superior Court handed down a very significant decision on the legal principle of “Res Ipsa Loquitur.” Res Ipsa Loquitur is Latin term for “the thing speaks for itself.” In law, Res Ipsa Loquitur is a doctrine, or rule of evidence, that may apply in certain situations when it’s assumed that a person’s injury was caused by the negligent action of another party because the accident was the sort that wouldn’t occur unless someone was negligent.

On appeal, the Superior Court held that the trial court erred and that a Res Ipsa Loquitur jury instruction should have been given. The Superior Court remanded the case back to the trial court for a new trial. A jury returned a substantial verdict after hearing the second trial.