Many times persons injured at a skilled nursing facility are unable to tell family members the reasons for their injuries. In these cases, the facility usually denies wrongdoing even though it was solely charged with the watchful and oversight of a resident. Persons who are bedridden or confined to wheelchairs have physical limitations which make them vulnerable to injuries if not properly handled and moved in a nursing home. If they are severely injured, these residents may not have the ability or opportunity to describe what happened to them.

There was a very similar situation analyzed by the Georgia Court of Appeals which involved a toddler hurt at a daycare center. The facts and law applied in the daycare case are analogous to similar issues presented at nursing homes. Many times, family members are not present during an accident and injured residents can be unable to describe an incident to their loved ones.

In the daycare lawsuit, a toddler was presented to his mother with a broken leg after being at the childcare facility. See Persinger v. Step by Step Infant Development Center, 560 SE 2d 333 (2002). The daycare said the toddler broke his leg when the baby stumbled; but the treating orthopedist said the injury could only have occurred by falling from a great height or by a severe twisting of the child’s leg.

Persinger identifies the four elements which must be proven in a negligence claim and concluded that two of the requirements had been met by the plaintiff, stating as follows: “(1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury. ... In this case the legal duty is established and the injury is not disputed.” Persinger, at 335.

Persinger noted that a jury could find the daycare had not properly supervised the baby and that this negligence caused the broken leg. Without res ipsa loquitur, however, the court said summary judgment would be given to the daycare because there was no evidence of breach of the daycare’s duty. The toddler was unable to speak about his accident, the parents were not present when the leg was broken, and the daycare denied wrongdoing.

The Persinger appellate decision went on to explain that res ipsa allows a jury to infer from facts proven that other facts may be the reasonable and logical consequence of those facts proven. In other words, the injury would not have occurred but for negligence and the negligence is charged to the party in exclusive control of the instrumentality causing the harm. The doctrine of res ipsa can be used when there is no direct evidence establishing negligence. Id., at 336. Persinger gives us the three elements of res ipsa loquitur as follows:

"The elements of [the] doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." Id,. at 336.

The court in Persinger explained that res ipsa is a rule of circumstantial evidence allowing an inference of negligence because an event happened and the event speaks for itself. This raises a jury question and summary judgment in favor of a defendant is not appropriate. A jury is allowed to decide the facts and accept or reject the inference of wrongdoing.

Circumstantial evidence can be described as facts which do not directly prove an issue but establish other facts which support the plaintiff's theory of an event. Id., at FN 1 and also see Southern R. Co., v. Georgia Kraft, 258 Ga. 232, 367 SE 2d 539 (1988). In Persinger, the court held the doctor’s statement, “raise[d] the direct inference that the accident did not happen the way the defendants claims it did.” Id., at 337.

Persinger concluded that a childcare facility has exclusive control of the instrumentalities required for the application of res ipsa. It said, “[T]he instrumentalities at issue are the day care workers themselves, who had complete authority and responsibility for the children.” To satisfy the third element of res ipsa loquitur, the court noted there was no evidence the toddler had contributed to or caused the type of injury according to the doctor’s explanation and conclusions. Id., at 337, emphasis added.

Persinger noted that although res ipsa must be applied with caution and only used in “extreme cases”, the physician’s expert opinion made the doctrine applicable and viable in that daycare setting. Id., at 338.

There was a recent mediation for the wrongful death of a wheelchair bound resident at a nursing home. Her hip had been severely fractured while in the facility and she subsequently died. The nursing home stated it did not cause the fracture or death and argued that no one could prove wrongdoing on their part.

The deceased resident was unable to speak about her injuries prior to her death and no family members were present at the time of the injury. Since the nursing home denied any wrongdoing, the facility maintained that no one could prove its staff had been negligent. This is where the Persinger decision and res ipsa loquitur helped “fill in the blanks”.

During this mediation for the wrongful death of the nursing home resident, it was shown that the decedent could not have lifted herself out of her bed or her wheelchair. The coroner’s report concluded the hip fracture was due to severe trauma (like being dropped). Res ipsa and the holdings in Persinger were emphasized during the mediation and this resulted in a favorable settlement.

See the Georgia Evidence Code which codifies the doctrine of res ipsa loquitur as follows:

2017 Georgia Code — Title 24 - Evidence — Chapter 14 - Proof Generally — Article 1 - General Provisions — § 24-14-9. Inferences from evidence or lack thereof

Universal Citation: GA Code § 24-14-9 (2017)

In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.

Because Georgia recognizes res ipsa loquitur, when there is a lack of direct evidence proving negligence, the wrongdoing can be established by inference. When it is invoked, there is a rebuttable presumption that a defendant was negligent. Res ipsa creates the presumption that in the absence of negligence, there would not have been an injury or death. In other words, the facts which are established clearly point to the conclusion that an injury or death could only have occurred through negligence.

The Georgia Supreme Court explained the res ipsa rule of evidence in its 1970 decision, Parker v. Dailey, 226 Ga. 643, 177 SE 2d 44 (1970). This was one of the cases followed by the Court of Appeals in Persinger, supra. Under the facts presented to the Supreme Court in Parker, the court found direct evidence of negligence precluding the use of res ipsa and Parker also found there could have been an intervening or intermediary cause which produced the injury. But the Georgia Supreme Court described the doctrine of res ipsa loquitur as follows:

“The expression ‘res ipsa loquitur’ means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that ‘the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage,’ and ‘the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ Chenall v. Palmer Brick Co., 117 Ga. 106, 109 (43 SE 443). The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant.” Id., at 645.

Under some situations, a vulnerable nursing home resident may be unable to speak about how an injury occurred. There may be no impartial witnesses and a facility will likely not admit wrongdoing. Consider res ipsa loquitur when a business is in sole control of the instrumentalities at issue (its personnel) and the nursing home has complete authority and responsibility for those causing damages (its personnel). This doctrine can step in and prevent summary judgment for a defendant. It provides an inference of evidence of negligence so there is a jury question during a trial on the merits. If a third party expert disagrees with a facility’s explanation of an accident or injury, that expert’s opinion should carry great weight with the fact finder. The jury can then find that an injury did not occur without negligence.