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Discussion 04.2: Shifting the Burden of Proof

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 Read the Discussion 04.2 Scenario. Refer to this scenario to answer the questions below.

1.Discuss why the doctrine of res ipsa loquitur would apply in this case. What are the elements of the doctrine, and how do the facts of this case satisfy those elements?

2.How would shifting the burden of proof from the plaintiff to the defendants using res ipsa loquitur be helpful? Would the plaintiff be able to make a normal case for negligence without being able to prove exactly what took place while he was unconscious during surgery? 


At a local Missouri hospital a patient had a total right knee replacement (arthoplasty) under general

anesthesia. However, upon awakening from the anesthesia, he immediately experienced pain in his

right hand, arm and shoulder which was not present before the surgery. This was not an expected

complication from the procedure. The patient sued the hospital and the surgeon for medical


The patient, being under anesthesia during the entire procedure, has no idea what went wrong during

the procedure. The medical records also do not shed light on the matter, and there was no video

recording of the procedure.

The hospital immediately moves to dismiss the case, arguing that the complaint failed to make a

submissible case of negligence, because the he has failed to allege exactly how any hospital employees

breached the duty of care. The plaintiff argues that the case should proceed, because the doctrine of res

ipsa loquitur applies. The judge agrees, overrules the motion to dismiss, and the case proceeds to trial.

(Note: If you would like to see the real case this scenario is based upon, check out Zumwalt v. Koreckij,

24 S.W.3d 166 (Mo.App. E.D. 2000). Be warned—the scenario has altered the facts from the original

case. Do not rely upon the real case opinion in formulating your answer to the fictional scenario in the

discussion question.)