## Facts

- Burton Brannon underwent thoracic surgery at St. Vincent Hospital in 1964 for removal of an apparent posterior mediastinal tumor by Dr. James A. Wood, a thoracic surgeon affiliated with The Portland Clinic.
- During surgery, the mass was identified as a meningocele protruding through a spinal foramen into the chest cavity and was excised.
- Hours later, Brannon suffered severe hemorrhaging and was returned to surgery; Dr. Wood found bleeding coming through the foramen where the meningocele had been removed.
- Dr. Wood attempted hemostasis with Cushing clips and Gelfoam, then a sponge, and ultimately packed Surgicel through the foramen until bleeding stopped; Brannon was receiving transfusions due to critical blood loss.
- After the second operation, Brannon was paralyzed from the waist down; a later operation did not resolve the paralysis.
- Brannon alleged (and introduced proof) that the paralysis resulted from Surgicel being placed so it impinged on the spinal cord.
- Brannon sued for medical malpractice, alleging negligent placement of Surgicel and negligent failure to warn of material surgical risks, including paralysis.
- The trial court refused Brannon’s requested res ipsa loquitur instruction; the jury returned a defense verdict, and Brannon appealed.

## Issues

1. Whether the evidence entitled Brannon to a res ipsa loquitur instruction permitting the jury to infer negligence from paralysis occurring after the surgical hemostatic packing.
2. In a medical malpractice case involving complex procedures, whether a bad surgical outcome may be treated as the kind of event that ordinarily would not occur absent negligence without sufficient expert support.

## Decision

- The Oregon Supreme Court affirmed the judgment for Dr. Wood and The Portland Clinic.
- The court held res ipsa loquitur did not apply because the paralysis, in the circumstances presented, did not itself permit a lay inference that negligence probably occurred.
- The refusal to instruct on res ipsa loquitur was not error; the case was properly tried under ordinary negligence instructions, with the jury resolving disputes in the evidence.
- The court also left intact the jury’s resolution of the failure-to-warn theory against Brannon.

## Legal Principles

- Res ipsa loquitur permits, but does not compel, an inference of negligence only when foundational conditions are met, including that the event is the kind that ordinarily does not occur in the absence of negligence.
- In medical malpractice cases, whether an adverse outcome ordinarily implies negligence commonly requires expert testimony because lay jurors lack the medical knowledge to classify the outcome as inherently suggestive of negligence.
- A severe post-operative injury, without more, is not sufficient to invoke res ipsa loquitur where the procedure involves technical medical judgments, emergency conditions, and recognized complications.
- When res ipsa loquitur’s prerequisites are not satisfied, the plaintiff must proceed on conventional proof of breach of the professional standard of care and causation, subject to the jury’s factfinding.

## Conclusion

The Oregon Supreme Court upheld a defense verdict in a malpractice suit arising from post-surgical paralysis, ruling that res ipsa loquitur was unavailable because the injury did not, on this record, “speak for itself” as negligence in a complex and emergent surgical setting.


Brannon v. Wood, 444 P.2d 558 (Or. 1968)