How should the court rule?

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. Scenario
(based on a real Missouri case): 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. The patient sued the
hospital and the surgeon for medical malpractice. What should be
the basis of the lawsuit given these facts? Should it be based upon
a typical negligence principle (e.g., duty, breach of duty,
causation, etc.)? If so, which one(s)? If not, what other tort
liability theory might apply and why? How should the court rule?
IMPORTANT NOTE: Your initial reaction to this question is probably
going to be, “I don’t have enough facts to answer the question!”
However, that’s not true. Put yourself in the shoes of a
malpractice lawyer. This patient comes to you, asking for legal
advice. You don’t have much information about what could have gone
wrong in the surgery. However, SOMETHING must have gone wrong to
have an outcome like this. In fact, somebody likely did something
negligent during the surgery, you’re just not sure who or what. Is
there a legal theory (one you might have read about in your text,
maybe around page 156) that could help out a plaintiff in this
situation, where he doesn’t have all the facts?

 

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