Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Hubbard v. Mellion, 48 Kan. App. 2d 1005, 302 P.3d 1084 (2013).

This case addresses the following issue:

Can a plaintiff bring a medical malpractice even if the exact mistake the doctor made is unknown?

In surgery, a lot can go wrong. Sometimes, it can be hard to retrace exactly what went wrong, even though the results make it clear that something unplanned has happened. Id. at 1013. In this case, a surgical instrument broke during surgery, causing a piece of the instrument to remain lodged in Plaintiff’s spinal disc. Id. at 1007. Under these circumstances, the court allowed Plaintiff’s claim to proceed, even though Plaintiff could not say exactly what error caused the breakage of the instrument; no matter the error, the fact that a piece of a surgical instrument remained in a patient demonstrates a sufficient breach of the surgeon’s duty of care. Id. at 1022.

Plaintiff suffered from a herniated disc. Id. at 1007. She visited Defendant, who recommended surgery to remove the bulging portion of the disc. Id. During the procedure, for some reason, an instrument shattered. Id. at 1008. Defendant attempted to collect all the pieces of the instruments, but one remained lodged in Plaintiff’s disc. Id. Rather than remove the disc completely and fuse the spine at that point, Defendant completed the surgery to see if the piece of instrument caused any pain to Plaintiff. Id. Unsurprisingly, the shard did cause great pain to Plaintiff, ultimately requiring another surgery to correct. Id. Plaintiff filed suit against both the surgeon and the manufacturer of the instrument. Id.

The court began by noting that an adverse result from a surgery is not enough to show that a surgeon acted carelessly. Id. at 1013. However, circumstantial evidence can be used to prove negligence. Id. Further, under the evidentiary doctrine of res ipsa loquitur, a plaintiff can simply present evidence of a result that would not occur unless a doctor was careless, rather than identifying exactly how the doctor was careless. Id. at 1016. Three things must be shown for this doctrine to apply. Id. First, the thing that causes the injury—here, the surgical instrument—must be within the exclusive control of the doctor and the team working under him. Id. Second, the situation is one that does not occur unless someone is careless. Id. Third, the plaintiff cannot contribute to the occurrence. Id.

Applying the doctrine in this case, the court easily found all three factors to be present. Id. at 1017. First, the surgical instrument had been in the control of Defendant’s team from the time surgery was prepped until the breakage. Id. Defendant’s team claimed to have inspected the instrument prior to the surgery, and from that point forward the team had control over the item. Id. The remaining factors were clear wins for the Plaintiff: a recently inspected surgical instrument does not break absent some type of carelessness and Plaintiff—being sedated for surgery—had no influence on the occurrence at all. Id. Thus, Plaintiff could recover without having to identify precisely what Defendant did to cause the breaking of the instrument. Id.


  1. Can a surgeon be liable for errors made by other members of the surgical team under his or her supervision? 

  2. Do a hospital, nurses, and doctors all owe the same standard of professional care to patients? 

  3. Do all mistakes by a surgeon constitute medical malpractice? 

  4. What constitutes a claim of negligence per se under Kansas law? 

  5. When can the violation of a law be used to establish a claim of negligence per se?