13-1118. Circumstantial evidence of medical negligence ("Res ipsa loquitur").
    To prove negligence, the patient need not prove specifically what _________________1 did or failed to do that was negligent.
    The patient may prove _______________'s1 negligence by proving each of the following propositions:
    1.    that the injury or damage to the patient was proximately caused by (the name of the instrumentality or occurrence) which was ___________________'s1 responsibility to manage and control; and
    2.    that the event causing the injury or damage to the patient was of a kind which does not ordinarily occur in the absence of negligence on the part of the _____________________1 in control of [the instrumentality] or [that portion of the procedure].
    [Propositions (1) or (2) must be proved by the testimony of a doctor testifying as an expert.]
    If you find that each of these propositions has been proved, then you may, but are not required to, find that __________________1 was negligent.
    If, on the other hand, you find that either one of these propositions has not been proved or, if you find,

notwithstanding the proof of these propositions, that ________________1 used ordinary care for the safety of others in [his] [her] control and management of the (instrumentality or occurrence) then the evidence would not support a finding of negligence.

FOOTNOTE

    1.    Insert the name of the party against whom the claim is asserted.
DIRECTIONS FOR USE

    The names of the various individuals and the name or description of the instrumentality or occurrence should be inserted in the appropriate blanks. Care should be used that the correct names are placed in the various blanks.
    What was previously labeled res ipsa loquitur is applicable in a medical negligence action. The fact that there is other evidence of the specific cause of the injury does not preclude the use of this instruction. Mireles v. Broderick, 117 N.M. 445 (1994). Exclusive control by the defendant, of the instrumentality or circumstance at issue is not a prerequisite for its use. Mireles v. Broderick, 117 N.M. 445 (1994), Trujeque v. Service Merchandise Company, 117 N.M. 388, 872 P.2d 361 (1994). As a factual matter, two or more persons may conceivably share responsibility of the management of the object, activity, or circumstances at issue. Expert testimony is not necessary

where propositions 1 or 2 are within the common knowledge of a lay person.
[Approved, effective August 1, 1999.]

COMMITTEE COMMENT

    Res ipsa loquitur is an appropriate instruction in a medical negligence case. Mireles v. Broderick, 117 N.M. 445, 874 P.2d 962 (1994). The circumstantial evidence of medical negligence instruction has been drafted in response and is phrased in lay terms. All arcane, magic and "sacred" language, including even "res ipsa", have been eliminated. Res ipsa is a rule of circumstantial negligence and therefore has been characterized as such.
    Mireles, and Trujeque v. Service Merchandise Company, 117 N.M. 388, 872 P.2d 361 (1994), indicates that exclusive control of the instrumentality or circumstances giving rise to the injury is not a prerequisite for utilizing this instruction. Consequently the exclusivity requirement has been eliminated and the requirement of management and control is substituted in its place.
    Under this instruction, a number of different persons might have different responsibilities as to the same patient, but if two or more physicians have the responsibility for managing one facet of an operative procedure, i.e., the padding of an eye or an elbow or even share in that control, then there is no reason under the

existing case law and the principles of Bartlett and Section 41-3A-1 NMSA 1978 why the doctrine of res ipsa does not apply in those instances to both physicians.