{ "id": 1552538, "name": "Mary Ann MIRELES, Plaintiff-Petitioner, v. Thomas BRODERICK, Defendant-Respondent", "name_abbreviation": "Mireles v. Broderick", "decision_date": "1994-04-04", "docket_number": "No. 20375", "first_page": "445", "last_page": "452", "citations": [ { "type": "official", "cite": "117 N.M. 445" }, { "type": "parallel", "cite": "872 P.2d 863" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "117 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552532 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0388-01" ] }, { "cite": "103 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711392 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "697" }, { "page": "1359" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0689-01" ] }, { "cite": "98 N.M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582478 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0712-01" ] }, { "cite": "99 N.M. 359", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584650 ], "weight": 2, "pin_cites": [ { "page": "363" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0359-01" ] }, { "cite": "87 N.M. 25", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833398 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "26-28" }, { "page": "885-87" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0025-01" ] }, { "cite": "74 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805098 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "334", "parenthetical": "stating that the purpose of instructing the jury \"is to make the issues that they are to determine plain and clear\"" }, { "page": "447", "parenthetical": "stating that the purpose of instructing the jury \"is to make the issues that they are to determine plain and clear\"" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0329-01" ] }, { "cite": "59 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589299, 1589324 ], "weight": 4, "year": 1955, "pin_cites": [ { "page": "267", "parenthetical": "stating, \"only statements of law to be applied in the examination and determination of the issue\" should be included" }, { "page": "1108-09", "parenthetical": "stating, \"only statements of law to be applied in the examination and determination of the issue\" should be included" }, { "page": "273" }, { "page": "1112", "parenthetical": "\"[I]t is the duty of the court at every trial to give to the jury the fundamental law applicable to the facts in the case and ... unless waived by the parties, instructions to that extent at least, must be given whether requested or not----\"" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0262-01", "/nm/59/0262-02" ] }, { "cite": "102 N.M. 28", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580183 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "32", "parenthetical": "approving an instruction that \"accords with New Mexico law\"" }, { "page": "1026", "parenthetical": "approving an instruction that \"accords with New Mexico law\"" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0028-01" ] }, { "cite": "60 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590422 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "174", "parenthetical": "\"A request for an erroneous instruction is properly refused.\"" }, { "page": "704", "parenthetical": "\"A request for an erroneous instruction is properly refused.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/60/0166-01" ] }, { "cite": "149 P. 307", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "year": 1915, "pin_cites": [ { "page": "309" }, { "page": "309", "parenthetical": "stating that the requested instruction must be in a form so that the trial court can submit it to the jury without qualification or modification; if the requested instruction is erroneous \"either wholly or in part,\" it is properly refused" } ], "opinion_index": 0 }, { "cite": "20 N.M. 366", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4713844 ], "weight": 2, "year": 1915, "pin_cites": [ { "page": "375" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nm/20/0366-01" ] }, { "cite": "81 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370640 ], "weight": 2, "pin_cites": [ { "page": "545-46" }, { "page": "524-25" } ], "opinion_index": 0, "case_paths": [ "/nm/81/0541-01" ] }, { "cite": "486 So.2d 530", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7601460 ], "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/so2d/486/0530-01" ] }, { "cite": "74 N.M. 423", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806673 ], "weight": 10, "year": 1964, "pin_cites": [ { "page": "424" }, { "page": "270" }, { "page": "424" }, { "page": "271" }, { "page": "427" }, { "page": "273" }, { "page": "425" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0423-01" ] }, { "cite": "17 Ga.L.Rev 33", "category": "journals:journal", "reporter": "Ga. L. Rev.", "year": 1982, "pin_cites": [ { "page": "52-56", "parenthetical": "recommending that Georgia permit inference of negligence in medical malpractice actions to be based on expert testimony" } ], "opinion_index": 0 }, { "cite": "121 N.W.2d 255", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1963, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "20 Wis.2d 1", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8676038 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/wis-2d/20/0001-01" ] }, { "cite": "382 P.2d 518", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1963, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "62 Wash.2d 351", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1036963 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/wash-2d/62/0351-01" ] }, { "cite": "315 N.W.2d 489", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10677784 ], "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/nw2d/315/0489-01" ] }, { "cite": "496 Pa. 465", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1772967 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "1138" } ], "opinion_index": 0, "case_paths": [ "/pa/496/0465-01" ] }, { "cite": "240 Or. 196", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2105718 ], "weight": 2, "year": 1965, "pin_cites": [ { "parenthetical": "in banc" }, { "page": "243-44", "parenthetical": "in banc" } ], "opinion_index": 0, "case_paths": [ "/or/240/0196-01" ] }, { "cite": "435 A.2d 1150", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1981, "pin_cites": [ { "page": "1157-58" } ], "opinion_index": 0 }, { "cite": "87 N.J. 512", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 340012 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nj/87/0512-01" ] }, { "cite": "210 N.W.2d 609", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10768443 ], "year": 1973, "pin_cites": [ { "page": "614-15" } ], "opinion_index": 0, "case_paths": [ "/nw2d/210/0609-01" ] }, { "cite": "381 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "21 Ill.Dec. 362", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1978, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "72 Ill.2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443031 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/72/0495-01" ] }, { "cite": "291 P.2d 915", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1955, "pin_cites": [ { "page": "923", "parenthetical": "in bank" } ], "opinion_index": 0 }, { "cite": "45 Cal.2d 811", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4391238 ], "year": 1955, "pin_cites": [ { "parenthetical": "in bank" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/45/0811-01" ] }, { "cite": "135 N.E. 504", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 0 }, { "cite": "233 N.Y. 285", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1966943 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ny/233/0285-01" ] }, { "cite": "37 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575392 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "528", "parenthetical": "quoting from Plumb v. Richmond Light & R. Co., 233 N.Y. 285, 135 N.E. 504 (1922" }, { "page": "199", "parenthetical": "quoting from Plumb v. Richmond Light & R. Co., 233 N.Y. 285, 135 N.E. 504 (1922" } ], "opinion_index": 0, "case_paths": [ "/nm/37/0525-01" ] }, { "cite": "73 N.M. 445", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5319859 ], "weight": 4, "year": 1964, "pin_cites": [ { "page": "448" }, { "page": "213" }, { "page": "448-49" }, { "page": "213", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/73/0445-01" ] }, { "cite": "113 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723294 ], "weight": 13, "pin_cites": [ { "page": "461" }, { "page": "849" }, { "page": "465" }, { "page": "853" }, { "page": "464" }, { "page": "852", "parenthetical": "stating the instruction \"begins after the jury has crossed the res ipsa bridge\"" }, { "page": "466" }, { "page": "854", "parenthetical": "Bivins, J., specially concurring" }, { "page": "468" }, { "page": "856", "parenthetical": "Pickard, J. dissenting" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0459-01" ] } ], "analysis": { "cardinality": 1127, "char_count": 25170, "ocr_confidence": 0.706, "pagerank": { "raw": 1.4355909561806083e-07, "percentile": 0.6521341591729866 }, "sha256": "906811834f409c503c4e6dd90e25f7a674298e4f52f3ef39dac5a1d1e793647f", "simhash": "1:dee7fc1a188304d0", "word_count": 4095 }, "last_updated": "2023-07-14T15:10:41.727131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA and FROST, JJ., concur." ], "parties": [ "Mary Ann MIRELES, Plaintiff-Petitioner, v. Thomas BRODERICK, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nRANSOM, Justice.\nOn petition of Mary Ann Mireles, we issued a writ of certiorari to the Court of Appeals to decide (1) whether the doctrine of res ipsa loquitur is restricted to events from which the jury, without assistance of expert testimony, could infer negligence from common knowledge that such events do not otherwise ordinarily occur; and (2) what responsibility the trial court has.in response to a request for a jury instruction on a theory to which a party is entitled but which has been requested in language that is unsatisfactory to the court. This is a medical malpractice action in which Mireles has sued Dr. Thomas Broderick, her anesthesiologist. Based on expert testimony that the anesthesiologist positions and cushions the patient\u2019s arm to avoid nerve compression injury during surgery, Mireles requested the trial court to describe the injury-causing occurrence that was within the exclusive control or management of the anesthesiologist as \u201cinadequate protection of plaintiffs extremities during anesthesia.\u201d Because of alleged error in the statement of this element of the doctrine, the Court of Appeals affirmed the trial court\u2019s refusal to instruct the jury on res ipsa loquitur as requested by Mireles. Mireles v. Broderick, 113 N.M. 459, 827 P.2d 847 (Ct.App.1992). We reverse and remand for a new trial. In so doing, we address additional issues raised by Dr. Broderick \u2014 the propriety of instructing the jury on res ipsa loquitur in medical malpractice actions generally and in this case in particular, and the necessity of establishing exclusive control in order to submit the instruction to the jury.\nFacts and proceedings. Shortly after undergoing a bilateral mastectomy, Mireles experienced numbness in her right arm. The numbness subsequently was diagnosed as ulnar neuropathy, a condition marked in her case by degenerative nerve damage to the fourth and fifth fingers of her right hand. Mireles brought this action against Dr. Broderick, alleging separate counts of medical negligence, battery, and res ipsa loquitur. The case went to trial before a jury on the negligence and res ipsa loquitur theories. Mireles\u2019s expert witness, Dr. Randall Waring, testified that the ulnar nerve can be injured if it is compressed. He testified he believed that Mireles\u2019s ulnar injury, \u201cin all probability, occurred while she was under anesthesia for [the] surgery\u201d and that such injury was totally preventable by proper care. He testified that the ultimate responsibility for protection against injury lies with the anesthesiologist, who should properly position and cushion the arm to avoid compression and should monitor the arm during surgery to be sure that proper positioning and cushioning are maintained while the patient is unconscious. At the close of Mireles\u2019s case, the presiding judge stated that he was not going to allow Mireles to go forward with the case on the theory of res ipsa loquitur \u201cbecause it doesn\u2019t come under the exclusivity rule.\u201d The court later refused Mireles\u2019s requested instruction on res ipsa loquitur.\nFocusing on the content of the requested instruction, the Court of Appeals affirmed the trial court. Citing SCRA 1986, 1-051(1) (Repl.Pamp.1992) (stating that \u201ca correct instruction must be tendered\u201d to preserve error in instructions), the Court based its affirmance on the conclusion that the tendered instruction was \u201cnot a proper res ipsa instruction.\u201d Mireles, 113 N.M. at 461, 827 P.2d at 849. The Court also advanced a broader rationale, namely that there could be no error in refusing the requested res ipsa loquitur instruction because, as framed by Mireles, the instruction was \u201cat best, an \u2018unnecessary crutch\u2019 that set forth an obvious proposition for which no additional instruction was necessary.\u201d Mireles, 113 N.M. at 465, 827 P.2d at 853.\nPropriety of res ipsa loquitur instruction in medical malpractice actions. In contending that res ipsa loquitur is inapplicable to this medical malpractice action as a matter of law, Dr. Broderick advances two arguments. First, he contends that res ipsa loquitur is available only when an inference of negligence is articulable from the common knowledge and experience of the lay person. The major thrust of Dr. Broderick\u2019s argument is that the common-knowledge requirement is the \u201chistorical premise\u201d of res ipsa loquitur, and to permit expert testimony to establish the inference of negligence would constitute an \u201cend run\u201d around this premise. According to Dr. Broderick, medical malpractice plaintiffs should be required to base their cases either on expert testimony or \u201ccommon-knowledge\u201d res ipsa loquitur, but not both. Second, according to Dr. Broderick, when a plaintiff has attempted to explain the exact medical cause of the injury, she should not have the benefit of the res ipsa loquitur instruction.\n\u2014Expert testimony may support an inference of negligence. Dr. Broderick argues that, because of the rule that negligence of medical providers generally must be proved by expert testimony, res ipsa loquitur is limited in malpractice cases to the common-knowledge exception alluded to by this Court in Cervantes v. Forbis, 73 N.M. 445, 448, 389 P.2d 210, 213 (1964). He argues that only when the inference of negligence is within the common reservoir of knowledge of the jurors may the jury be charged on the res ipsa loquitur doctrine. In Cervantes, we stated that -without expert witness testimony demonstrating departure from medical standards \u201cthere can be no issue of fact as to the negligence or proximate cause unless the case is one where exceptional circumstances within common experience or knowledge of the layman are present, or one where the res ipsa loquitur rule is applicable.\u201d Id. at 448-49, 389 P.2d at 213 (emphasis added).\nBy focusing on the rule of Cervantes, Dr. Broderick\u2019s argument loses sight of the dispositive principle at issue in the application of res ipsa loquitur. Res ipsa loquitur describes a set of conditions to be met before an inference of negligence may be drawn. See Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 528, 25 P.2d 197, 199 (1933) (quoting from Plumb v. Richmond Light & R. Co., 233 N.Y. 285, 135 N.E. 504 (1922), that res ipsa loquitur is a \u201crule that the fact of the occurrence of an injury and the surrounding circumstances [of the defendant\u2019s control and management] may permit an inference of culpability on the part of the defendant, make out plaintiffs prima facie case, and present a question of fact for the defendant to meet with an explanation\u201d). As such, the central issue is not whether common knowledge alone is sufficient to establish an inference of negligence. Rather, the issue is whether there is a factual predicate sufficient to support an inference that the injury was caused by the failure of the party in control to exercise due care. The requisite probability of negligence may exist independently of the common knowledge of the jurors. The common-knowledge exception to the expert testimony rule may inform but does not delimit the application of res ipsa loquitur.\nWe join the growing consensus of courts from other jurisdictions and adopt scholarly commentary to hold that the foundation for an inference of negligence may be formed by expert testimony that a certain occurrence indicates the probability of negligence. See, e.g., Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 923 (1955) (in bank); Walker v. Rumer, 72 Ill.2d 495, 21 Ill.Dec. 362, 364, 381 N.E.2d 689, 691 (1978); Perin v. Hayne, 210 N.W.2d 609, 614-15 (Iowa 1973); Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157-58 (1981); Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234, 243-44 (1965) (in banc); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134, 1138 (1981); Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 492-93 (S.D.1982); Horner v. Northern Pac. Beneficial Ass\u2019n Hosps., Inc., 62 Wash.2d 351, 382 P.2d 518, 524 (1963); Fehrman v. Smirl, 20 Wis.2d 1, 121 N.W.2d 255, 268 (1963); Restatement (Second) Torts \u00a7 328D cmt. d (1965) (\u201c[E]xpert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference [of negligence].\u201d); W. Page Keeton et al., Prosser and Keeton on the Law of Torts \u00a7 39, at 247 (5th ed. 1984) (stating that when a basis of common knowledge is lacking, expert testimony may provide a sufficient foundation for an inference of negligence); Thomas A. Eaton, Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment, 17 Ga.L.Rev 33, 52-56 (1982) (recommending that Georgia permit inference of negligence in medical malpractice actions to be based on expert testimony).\nContrary to Dr. Broderick\u2019s contentions, we are aware of no reported New Mexico opinions either expressly or impliedly prohibiting the founding of a res ipsa loquitur inference on expert testimony in medical malpractice actions or, for that matter, in any tort action. Dr. Broderick suggests that this Court in Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964), expressed reluctance to permit an expert-based res ipsa loquitur inference. To the contrary, Buchanan appears to encourage the practice. There, the plaintiff sued his doctor for injuries alleged to have resulted from the negligent administration of a hypodermic injection. On appeal from an adverse summary judgment, the plaintiff contended that application of the doctrine of res ipsa loquitur presented a factual issue of negligence sufficient to avoid summary judgment. Id. at 424, 394 P.2d at 270. Affirming, this Court noted that the plaintiffs failure to present evidence \u201cby deposition or affidavit, of any witness, expert or otherwise, supporting his allegation of negligence or the proximate cause of the injury,\u201d id. at 424, 394 P.2d at 271, was fatal to his claim that summary judgment was inappropriate. Id. at 427, 394 P.2d at 273. The Court reviewed the deposition testimony relied upon by the plaintiff and concluded that the testimony dispelled rather than raised an inference of negligence. Id. at 425, 394 P.2d at 271. We find nothing in Buchanan that would suggest reluctance to sanction, in the proper case, an expert-based res ipsa loquitur inference.\nDr. Broderick asserts, with little analysis, that by allowing expert testimony to form the basis for the res ipsa loquitur inference of negligence, \u201cres ipsa loquitur [would lose] its roots as a form of circumstantial evidence.\u201d We fail to perceive any such historical limitation on the application of res ipsa loquitur. As we have discussed, courts in other jurisdictions long have permitted expert testimony to form the foundation for an inference of negligence; commentators also endorse the use of expert testimony to raise the res ipsa loquitur inference. Stripped of technical argument, Dr. Broderick\u2019s contentions are a plea for a policy-driven decision to except medical malpractice defendants from the application of res ipsa loquitur. This we are unwilling to do.\n\u2014Evidence of specific cause of injury did not preclude res ipsa loquitur inference. Dr. Broderick contends that because Mireles adduced testimonial evidence concerning what could have been a cause of her injury, she is precluded from relying on the doctrine of res ipsa loquitur. He identifies the testimony of Dr. Waring that Mireles\u2019s arm was probably moved during surgery so that the ulnar nerve was compressed for between thirty and forty minutes on the edge of the padded board that held her arm. Citing Marrero v. Goldsmith, 486 So.2d 530, 532 (Fla.1986), Dr. Broderick\u2019 contends that when a plaintiff undertakes explanation of the accident as it actually occurred, \u201cthere is a point where the plaintiff destroys any inference of other causes and dispels the need for the inference of negligence.\u201d Recognizing that the Court of Appeals has held that some evidence of the cause of the injury does not obviate the need for res ipsa loquitur, see Harless v. Ewing, 81 N.M. 541, 545-46, 469 P.2d 520, 524-25 (Ct.App.1970), Dr. Broderick contends nonetheless that the evidence in this case rose above the \u201csome evidence\u201d standard of Harless. We find Prosser, supra, to be illuminating on this point.\nPlaintiff is of course bound by his own evidence; but proof of some specific facts does not necessarily exclude inferences of others. When the plaintiff shows that the railway car in which he was a passenger was derailed, there is an inference that the defendant railroad has somehow been negligent. When the plaintiff goes further and shows that the derailment was caused by an open switch, the plaintiff destroys any inference of other causes; but the inference that the defendant has not used proper care in looking after its switches is not destroyed, but considerably strengthened. If the plaintiff goes further still and shows that the switch was left open by a drunken switchman on duty, there is nothing left to infer; and if the plaintiff shows that the switch was thrown by an escaped convict with a grudge against the railroad, the plaintiff has proven himself out of court. It is only in this sense that when the facts are known there is no inference, and res ipsa loquitur simply vanishes from the case. On the basis of reasoning such as this, it is quite generally agreed that the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence, does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.\nProsser \u00a7 40, at 260 (footnotes omitted).\nSignificantly, Mireles was actually unable to provide by way of an expert opinion direct evidence that Dr. Broderick\u2019s failure to use proper care resulted in her injury. No expert \u201cwent so far\u201d as to testify that the injury to Mireles was proximately caused by the failure of Dr. Broderick to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified anesthesiologists. See SCRA 1986, 13-1101 (Repl.Pamp.1991) (Uniform Jury Instruction, duty of doctor). Because Dr. Waring\u2019s testimony did not purport to furnish an opinion on the ultimate issues of medical malpractice, it did not deprive Mireles of the benefit of res ipsa loquitur.\nErroneous refusal of res ipsa loquitur instruction based on disputed craftsmanship. The parties and the Court of Appeals have focused on alleged error committed by the trial court in refusing the New Mexico Uniform Jury Instruction for res ipsa loquitur, which states:\nIn support of the claim that _ was negligent, ___ relies [in part] upon the doctrine of \u201cres ipsa loquitur\u201d which is a Latin phrase and means \u201cthe thing speaks for itself\u2019. In order for the jury to find _negligent on this doctrine,_has the burden of proving.each of the following propositions:\n1. that the injury or damage to _ was proximately caused by\n(name of instrumentality or occurrence) which was under the exclusive control and management of_; and\n2. that the event causing the injury or damage to __ was of a kind which does not ordinarily occur in the absence of negligence on the part of the person in control of the instrumentality.\nIf you find that_proved each of these propositions, then you may, but are not required to, infer that_was negligent and that the injury or damage proximately resulted from such negligence.\nIf, 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 _used ordinary care for the safety of others in [his] [her] [its] control and management of the_then the doctrine of res ipsa loquitur would not support a finding of negligence.\nSCRA 1986, 13-1623 (Repl.Pamp.1991).\nPertinent to our discussion, Mireles requested this instruction with the following insertion which we have italicized:\n1. That the injury to Plaintiff was proximately caused by inadequate protection of Plaintiffs extremities during anesthesia while her condition was under the exclusive control and management of Dr. Broderick.\n2. That injury to Plaintiff was of the kind which does not ordinarily occur in the absence of negligence on the part of the person in control.\nIn essence, the Court of Appeals appears to have reasoned that the instruction as worded was unnecessary, that it did not provide for the finding of a factual premise upon which to base a res ipsa loquitur inference of negligent causation. The Court believed the jury was instructed to find the fact issue of negligence rather than the premise of exclusive control. Mireles, 113 N.M. at 464, 827 P.2d at 852 (stating the instruction \u201cbegins after the jury has crossed the res ipsa bridge\u201d). Had the jury found to be true the proposition that Mireles\u2019s injury was caused by \u201cinadequate protection\u201d of her extremities, the jury would not need a res ipsa loquitur inference to determine liability. Id. Judge Bivins similarly opined that the term \u201cinadequate protection\u201d describes the \u201cspecific acts of negligence Plaintiff relied on to prove Defendant negligent.\u201d Id. at 466, 827 P.2d at 854 (Bivins, J., specially concurring).\nThis Court has long held that a requested instruction that is erroneously or inaccurately drafted need not be given by the trial court. See, e.g., Childers v. Southern Pac. Co., 20 N.M. 366, 375, 149 P. 307, 309 (1915); Hanks v. Walker, 60 N.M. 166, 174, 288 P.2d 699, 704 (1955) (\u201cA request for an erroneous instruction is properly refused.\u201d). The formulations of the rule suffer little tolerance. See Childers, 20 N.M. at 375, 149 P. at 309 (stating that the requested instruction must be in a form so that the trial court can submit it to the jury without qualification or modification; if the requested instruction is erroneous \u201ceither wholly or in part,\u201d it is properly refused). It should be clear, however, that these statements of the rule beg rather than answer the question we face today: When is an instruction so legally incorrect or deficient to justify wholesale rejection by the trial court? An instruction is correct, and thus proper to submit to a jury, when the instruction is consistent with the law, cf. Ambassador Ins. Co. v. St. Paul Fire & Marine Ins. Co., 102 N.M. 28, 32, 690 P.2d 1022, 1026 (1984) (approving an instruction that \u201caccords with New Mexico law\u201d), and articulates fairly, completely, and succinctly the relevant law applicable to the facts, cf. Gerrard v. Harvey & Newman Drilling Co., 59 N.M. 262, 267, 282 P.2d 1105, 1108-09 (1955) (stating, \u201conly statements of law to be applied in the examination and determination of the issue\u201d should be included), so that the jury when so instructed will be able to comprehend and apply the law, see Haynes v. Hockenhull, 74 N.M. 329, 334, 393 P.2d 444, 447 (1964) (stating that the purpose of instructing the jury \u201cis to make the issues that they are to determine plain and clear\u201d). In this case, we agree with Judge Pickard\u2019s dissent that the majority of the Court of Appeals read the \u201crequested instruction in an unnecessarily technical fashion,\u201d see Mireles, 113 N.M. at 468, 827 P.2d at 856 (Pickard, J. dissenting), and conclude that the instruction in this case was legally correct and should have been submitted to the jury as requested or as edited by the trial court.\nThe issue is whether insertion of the phrase \u201cinadequate protection of Plaintiffs extremities during anesthesia\u201d in the space provided for \u201cinstrumentality or occurrence\u201d fairly apprises the jury of the premise required by law. It is true that the inserted phrase articulates a specific act, and does so with the term \u201cinadequate\u201d, which is often associated with breach of duty. The fairest interpretation of the phrase, however, is that it identifies to the fullest extent possible the occurrence that allegedly caused Mireles\u2019s injury. We agree with Judge Pickard that the use of \u201cinadequate protection\u201d in that part of the instruction does not necessarily imply a specific act of negligence. \u201cAdequate protection\u201d simply means protection that is sufficient to prevent injury. Adequate protection may not be possible with the best of care. Some medical procedures are high risk because there is no way to protect against complications. Here, however, an expert testified that there are means of protecting against ulnar nerve damage and that complications do not ordinarily occur in the absence of negligent failure to employ such means.\nThis issue turns on the distinction between views on legal drafting and the measurement of legal sufficiency by objective criteria. As the Court of Appeals suggested, we also could propose different ways to draft the res ipsa loquitur instruction in this case and suggest that perhaps \u201cpositioning of the plaintiffs body\u201d may have been a better description of the injury-causing occurrence. Indeed, we would not be surprised to find many different approaches to the same problem. The task for the trial court in circumstances calling for drafting by counsel, however, is to determine whether the instruction as tendered informs the jury of the relevant law to be applied to the facts in the case. When draft language gives rise to concern, the trial court is nonetheless under a duty to instruct the jury succinctly and accurately on the issue of law presented. See SCRA 1-051(B) (\u201cThe court shall instruct the jury regarding the law applicable to the facts in the cause unless such instructions be waived by the parties.\u201d); Gerrard, 59 N.M. at 273, 282 P.2d at 1112 (\u201c[I]t is the duty of the court at every trial to give to the jury the fundamental law applicable to the facts in the case and ... unless waived by the parties, instructions to that extent at least, must be given whether requested or not----\u201d). The trial court may submit the instruction as tendered or change the instruction, with or without consultation with counsel, to suit his or her particular proclivity and style. Only legal or factual insufficiency will justify rejection. The trial court should not have refused to instruct the jury on Mireles\u2019s theory of the case.\nMireles provided sufficient evidence that Dr. Broderick had exclusive control within the meaning of res ipsa loquitur. Dr. Broderick contended, and the trial court agreed, that Mireles could not satisfy the element of exclusive control because more than one doctor had control of Mireles\u2019s body while she was unconscious. Dr. Broderick argues that the requisite control must be \u201csole\u201d control, citing to Waterman v. Ciesielski 87 N.M. 25, 26-28, 528 P.2d 884, 885-87 (1974), and Begay v. Livingston, 99 N.M. 359, 363, 658 P.2d 434, 438 (Ct.App.1981), rev\u2019d on other grounds, 98 N.M. 712, 652 P.2d 734 (1982). In Tipton v. Texaco, Inc., 103 N.M. 689, 697, 712 P.2d 1351, 1359 (1985), and recently in Trujeque v. Service Merchandise, 117 N.M. 388, 872 P.2d 361 (1994), we expressed that the meaning of \u201cexclusive control\u201d in res ipsa loquitur cases is fact specific within any given case. \u201cThe essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.\u201d Restatement (Second) Torts \u00a7 328D cmt. g (quoted in Trujeque, 117 N.M. at 401, 872 P.2d at 364). Dr. Waring testified that it was the ultimate responsibility of an anesthesiologist (Dr. Broderick, in this case) to ensure that a patient\u2019s arm was properly padded and positioned and to maintain the arm in the proper position during surgery. This testimony satisfied the exclusive control evidentiary requirement such that the question of exclusive control should have gone to the jury.\nConclusion. Because Mireles provided evidence that entitled her to proceed to the jury on the theory of res ipsa loquitur and tendered a legally correct instruction, the court erred in refusing to give the tendered instruction or an edited version thereof. We reverse the Court of Appeals and the trial court and remand for a new trial.\nIT IS SO ORDERED.\nBACA and FROST, JJ., concur.\n. In a linguistic sense, it may be true that when an expert is required to establish whether .the injury does not normally occur in the absence of negligence, the thing no longer \"speaks for itself.\u201d As a practical matter, however, a fellow physician may be disposed to speak to the necessaiy predicate but ill-disposed to state the natural inference that follows. As we note above, the issue in determining the availability of res ipsa loquitur is the presence of evidence raising an inference that the accident more probably than not occurred as a result of want of due care.\n. We are not concerned here with technical deficiencies including grammar, punctuation, or style errors, but add that refusal of an instruction based on de minimis technical deficiency would raise serious problems.", "type": "majority", "author": "RANSOM, Justice." } ], "attorneys": [ "William S. Ferguson, Albuquerque, for plaintiff-petitioner.", "Rodey, Dickason, Sloan, Akin & Robb, P.A., Bruce D. Hall, Albuquerque, for defendant-respondent." ], "corrections": "", "head_matter": "872 P.2d 863\nMary Ann MIRELES, Plaintiff-Petitioner, v. Thomas BRODERICK, Defendant-Respondent.\nNo. 20375.\nSupreme Court of New Mexico.\nApril 4, 1994.\nWilliam S. Ferguson, Albuquerque, for plaintiff-petitioner.\nRodey, Dickason, Sloan, Akin & Robb, P.A., Bruce D. Hall, Albuquerque, for defendant-respondent." }, "file_name": "0445-01", "first_page_order": 481, "last_page_order": 488 }