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Issue: What is the relevant California law that would support shifting the burden of proof on the issue of causation to the defendant where the defendant’s conduct has completely eliminated any opportunity for the plaintiff to present evidence that the defendant’s conduct was the cause of the plaintiff’s injuries?
| Area of Law: | Litigation & Procedure, Personal Injury & Negligence |
| Keywords: | Statutory shift of the burden of proof; Doctrine of res ipsa loquitor |
| Jurisdiction: | California |
| Cited Cases: | 368 F.2d 626; 81 Cal. Rptr. 381; 235 Cal. App. 3d 1593; 478 P.2d 465; 1 Cal. App. 3d 20; 91 Cal. Rptr. 745; 27 Cal. App. 2d 416; 154 P.2d 687; 3 Cal. 3d 756; 156 P.2d 441; 236 Cal. Rptr. 633; 2 Cal. Rptr. 121; 177 Cal. App. 2d 305; 21 Cal. 2d 486; 483 F. Supp. 581; 26 Cal. 2d 83; 191 Cal. App. 3d 709; 1 Cal. Rptr. 2d 584; 13 Cal. 2d 216 |
| Cited Statutes: | Cal. Evid. Code § 646(c) |
| Date: | 06/01/2013 |
Lashley v. Koerber, 26 Cal. 2d 83, 156 P.2d 441 (1945).
“‘Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. . . . It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitor in malpractice cases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.'” (quoting Engelking v. Carlson (1939), 13 Cal. 2d 216, 220, 221 [88 P.2d 695]).
“‘The necessity of employing an X-ray apparatus in reducing a fractured limb depends entirely upon the circumstances of the particular case. The question as to whether the reduction and treatment of a fractured limb without the use of an X-ray machine constitutes negligence, depends upon what an ordinarily skilled physician practicing in that vicinity, in the exercise of due care and professional judgment, would be required to do under like circumstances. The determination of those questions depends upon expert testimony.'” (quoting Bickford v. Lawson (1938), 27 Cal. App. 2d 416, 421 [81 P.2d 216]).
Hicks v. Estate of Greitens, 368 F.2d 626 (4th Cir. 1966).
“When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie […]