John Fry underwent a surgical procedure to replace his left hip.

The procedure was going to use a new type of ball joint and Dr.

Bake was to perform the procedure. During the operation a

representative of the medical device company, (Cook ortho)

Mike Brown, that manufactured the ball socket, was present to

assist Dr. Bake on the mechanics of using the new device. After

opening up the left hip and while removing the original hip

bone a small piece on the original bone broke off. Once Dr.

Bake thought the original bone was cleared the representative

of the device company, Mike Brown instructed Dr. Bake on how

the new ball joint was inserted during all the trials. After

considerable effort by Dr. Bake and Brown, to hammer in the

ball, it was fitted into the hip socket. A month later, after PT

and normal healing time, Mr. Fry was experiencing extensive

pain all the way down his left leg. He went to Dr. Bake who

contacted Brown to see if others with the device were having

issues. Brown said they have had 35 operations and no issues.

Dr. Bake said to Fry just scar tissue. After two months, Fry had

even more pain, returned to Bake who called Brown again and

same answer, no problems. Dr. Fry ordered an MRI the result

showed a bone sliver in the hip area had pierced the nerves to

the leg and the ball would have to be removed to get the bone

sliver out. Mr. Fry comes to your law firm and you are the

medical consultant, what would you advise on the negligence

Fry might allege against the hospital, Cook and Bake and

Brown.

Can Fry prove negligence against hospital, or Bake and Brown, why or why not?

Can the lawyers argue "res ipsa" to allow Fry to expand the

case against Bake and Brown, why or why not?