Georgia Law Review, Vol. 17, No. 1 (Fall 1982), pp. 33-76

Abstract

Part II of this Article addresses the threshold issue of when a court may consider a medical accident as one that ordinarily does not occur in the absence of negligence. This part criticizes the blanket rejection of res ipsa loquitur in Georgia malpractice opinions. Judicial hostility toward res ipsa loquitur in these cases is based in large part on a misunderstanding of the so-called presumption of due care. This part then explains how an inference of negligence may be harmonized with traditional fault-based malpractice doctrine. Finally, this part addresses judicial concerns about the sufficiency of evidence. It is argued that circumstantial evidence of negligence is no less inherently trustworthy than direct evidence. Part III discusses the role of res ipsa loquitur in malpractice cases involving multiple defendants. It is demonstrated that the selection between a narrow or expansive use of res ipsa loquitur in this situation depends on value preferences distinct from the circumstantial evidence of origin of the doctrine. The particular value choices do not depend on whether negligence is inferable from the accident. Rather, these choices involved the broader question of what objectives underlie tort law generally. The relevant policy considerations and some of their implications are discussed in an effort to provide the framework for future decisions.

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